Provisional text

delivered on 10 July 2025 (1)

Case C‑797/23

Meta Platforms Ireland Limited

Autorità per le Garanzie nelle Comunicazioni,

other parties:

Federazione Italiana Editori Giornali (FIEG),

Società italiana degli autori ed editori (SIAE),

Gedi Gruppo Editoriale SpA

(Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy))

( 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 payment of fair compensation – Obligations imposed on information society service providers – Powers conferred on an independent administrative authority – Balancing of fundamental rights – Charter of Fundamental Rights of the European Union – Article 17(2) – Fundamental right to the protection of intellectual property – Article 16 – Freedom to conduct a business – Article 11 – Freedom of expression and information )

Introduction

Of the sectors of the economy affected by the digital revolution and the advent of the internet – and few are not – the media sector and, more particularly, the print media sector occupies a prime position. It is faced with significant upheaval. That upheaval stems, in the first place, from the changing habits of users, who are not only replacing the paper press with online access to content, but are also diversifying the sources of that content, their choice being almost unlimited in the digital environment. In the second place, it is caused by the emergence of press review services, often offered by large online platforms. Those services create a ‘substitution effect’ by allowing users to acquaint themselves, albeit superficially, with journalistic content without accessing the original sources, that is to say, the websites of newspapers and periodicals. In the third place, the upheaval relates to competition vis-à-vis traditional media from the new information distribution channels made possible by the internet, in particular ‘social media’.

The aforementioned upheaval has brought about a drastic reduction in the revenues of press publishers, who are no longer able to bear the costs associated with their traditional business model – a reduction due as much to the collapse of sales of paper copies of newspapers and periodicals as to the loss of advertising revenue, now received, inter alia, by large online platforms.

However, the consequences of the crisis in traditional media are not merely economic. The media play a fundamental role in the functioning of democratic societies: they are both the principal source of reliable information for the general public and the most effective tool for ensuring that the conduct of those involved in political life is held up to the scrutiny of public opinion. The weakening of the media and their replacement by new actors, whose quality of information is variable to say the least, are strongly contributing to serious societal and political problems.

For that reason, initiatives for legislative intervention in favour of press publishers have been taken in non-member countries, (2) as well as in Member States, namely Germany and Spain. However, the latter measures have not lived up to expectations owing to problems relating both to their legality and to their ineffectiveness. (3)

The situation of press publishers vis-à-vis online platforms is not as simple as it might appear at first sight. While those platforms harm the interests of publishers, in particular through the ‘substitution effect’ and the competition they create, they also produce a positive ‘expansion effect’ by attracting a new audience. As it turns out, users’ habits have changed to such an extent that a very significant proportion of them now access journalistic content only through the various platforms. Publishers are therefore largely dependent on those platforms to win new customers, which renders the presence of their content on them indispensable. However, the reverse is not the case: the presence of such content is not crucial for the online platforms. Publishers are therefore in a vulnerable position vis-à-vis those platforms, which makes attempts to remedy the situation by granting new intellectual property rights to those publishers not very effective. Moreover, not all press publishers are affected in the same way: while large titles are more affected by the substitution effect, smaller publishers, particularly local ones, benefit rather from the expansion effect by gaining access to an audience that they would not have been able to reach by traditional means.

It is not surprising, therefore, that the provisions of EU law at issue in the present case, which establish a new intellectual property right for publishers, have been the subject of fierce criticism, both during the procedure for their adoption and after their entry into force. (4) The situation has even been compared to that of Hans Christian Andersen’s famous tale ‘The Emperor’s New Clothes’. (5)

When transposing the provisions of EU law in question, some Member States have nevertheless taken measures, such as the Italian measures at issue in the main proceedings, with a view to strengthening the negotiating position of press publishers and thus clothing the emperor in actual robes. The task of the Court is now to define the limits imposed by EU law that such measures must not exceed.

Legal context

European Union law

Article 15 of 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 (6) provides, inter alia:

‘1. Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC [(7)] for the online use of their press publications by information society service providers.

The rights provided for in the first subparagraph shall not apply to private or non-commercial uses of press publications by individual users.

The protection granted under the first subparagraph shall not apply to acts of hyperlinking.

…

4. The rights provided for in paragraph 1 shall expire two years after the press publication is published. That term shall be calculated from 1 January of the year following the date on which that press publication is published.

…’

Italian law

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, (8) in the version applicable to the dispute in the main proceedings (‘Law No 633/1941’), provides, inter alia:

‘1. Publishers of press publications, whether they are individuals or members of an association or consortium, shall have, in respect of the online use of their press publications by providers of the information society services …, including media monitoring and press review undertakings, the exclusive rights of reproduction and communication referred to in Articles 13 and 16.

…

6. The rights provided for in paragraph 1 shall not apply to the private or non-commercial use of press publications by individual users, to acts of hyperlinking or to the use of individual words or very short extracts from a press publication.

…

8. For the online use of press publications, information society service providers shall pay fair compensation to the persons referred to in paragraph 1. Within 60 days of the date of entry into force of this provision, the Autorità per le Garanzie nelle Comunicazioni [(the Communications Authority, Italy), (‘AGCOM’)] shall adopt a regulation identifying the benchmark criteria for determining the fair compensation referred to in the first sentence, taking into account, inter alia, the number of online consultations of the article, the years of activity and the market share of the publishers referred to in paragraph 3 and the number of journalists employed, as well as the costs incurred by both parties in respect of investment in technologies and infrastructure, and the economic benefits accruing to both parties from publication in terms of visibility and advertising revenue.

9. Negotiations, with a view to the conclusion of a contract for the use of the rights referred to in paragraph 1, between information society service providers – including media monitoring and press review undertakings – and the publishers referred to in paragraph 3 shall also take into account the criteria laid down in the regulation referred to in paragraph 8. During the negotiations, information society service providers shall not restrict the visibility of the publishers’ content in search results. The unjustified limitation of that content at the negotiation stage may be assessed in the context of the verification of compliance with the obligation of good faith laid down in Article 1337 of the Civil Code.

11. Where, following the determination of fair compensation by [AGCOM], the parties do not conclude a contract, either party may bring the matter before the chamber of the ordinary court specialising in business matters …, including in order to bring the action referred to in Article 9 of Law No 192 of 18 June 1998.

12. Information society service providers, including media monitoring and press review undertakings, are required to make available, at the request of the party concerned, including through collective management organisations or independent management entities …, if mandated, or at the request of [AGCOM], the data necessary for the determination of the amount of fair compensation. Compliance with the obligation referred to in the first sentence shall not exempt the publishers referred to in paragraph 3 from the obligation to respect the confidentiality of commercial, industrial and financial information of which they have become aware. Compliance with the obligation imposed on service providers to provide information shall be monitored by [AGCOM]. In the event of failure to provide such data within 30 days of a request made pursuant to the first sentence, the Authority shall impose an administrative fine on the non-compliant entity of up to 1% of turnover in the last financial year ending prior to the notification of the challenge …

…

14. The rights referred to in this article shall expire two years after the press work is published …’

Delibera n. 3/23/CONS (AGCOM Decision No 3/23/CONS), adopted by AGCOM on 19 January 2023, Annex A to which contains the regolamento in materia di individuazione dei criteri di riferimento per la determinazione dell’equo compenso per l’utilizzo online di pubblicazioni di carattere giornalistico di cui all’articolo 43 bis della Legge 22 aprile 1941, n. 633 (Regulation on the identification of benchmark criteria for determining fair compensation for the online use of press publications, as provided for in Article 43 bis of Law No 633/1941):

–identifies the criteria to be used to determine the amount of fair compensation, which include the definition of a calculation basis using the advertising revenue of information society service providers resulting from the online use of the publisher’s press publications, after deduction of the publisher’s revenue from redirecting traffic on its website (Article 4);

–sets a rate of up to 70% to be applied to the basic amount for the determination of the amount of fair compensation, on the basis of a number of additional criteria laid down in Article 4(2) thereof;

–lists the obligations to make the data available, defines AGCOM’s inspection powers and provides for the imposition of an administrative fine on non-compliant entities of up to 1% of turnover on the national market in the last financial year ending prior to the notification of the challenge (Article 5);

–governs the procedure for asking AGCOM to determine the amount of fair compensation and the provisions relating thereto, including the possibility for AGCOM to set that amount unilaterally (Articles 8 to 12).

The dispute in the main proceedings, the procedure and the questions referred for a preliminary ruling

Meta Platforms Ireland Limited (‘Meta’), established in Ireland, provides information society services, inter alia as the operator of the online social network Facebook.

By application lodged before the referring court, the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy), Meta brought an action for annulment of Decision No 3/23/CONS and its annexes.

In support of its action, Meta submits, inter alia, that Article 43 bis of Law No 633/1941 and the contested decision are contrary to Article 15 of Directive 2019/790, which does not establish remuneration rights but, rather, exclusive rights. Moreover, it submits that because of the obligations imposed on information society service providers, the significant limitations on the contractual freedom of economic operators, and the role and powers conferred on AGCOM, that legislation is also contrary to the freedom to conduct a business, guaranteed in Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and, in particular, the principle of free competition. Meta submits, before the referring court, that the measures adopted by the Italian legislature which hinder or, at the very least, render significantly less attractive, in Italy, the provision of services by companies established in other Member States lack proportionality and appropriateness.

In those circumstances the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. May Article 15 of [Directive 790/2019] be interpreted as precluding the introduction of provisions of national legislation, such as those laid down in Article 43 bis of Law [No 633/1941] and those laid down in Decision No 3/23/CONS of [AGCOM], in so far as:

(a)for the benefit of publishers and in addition to the exclusive rights referred to in Article 15 of the [Directive 2019/790], remuneration (fair compensation) obligations are imposed on [information society service providers (ISSPs)];

(b)those ISSPs are required:

–to enter into negotiations with publishers,

–to provide those publishers and [AGCOM] with the information necessary to determine fair compensation, and

–not to restrict the visibility of the publisher’s content in search results pending completion of negotiations;

(c)[AGCOM] is given:

–supervisory and sanctioning powers,

–the power to identify the benchmark criteria for determining fair compensation,

–the power to determine, in the absence of agreement between the parties, the exact amount of fair compensation?

3. Do the principles of freedom to conduct a business, referred to in Articles 16 and 52 of the [Charter], of free competition, referred to in Article 109 TFEU, and of proportionality, referred to in Article 52 of the [Charter], preclude provisions of national legislation, such as those referred to above, which:

(a)introduce rights to remuneration in addition to the exclusive rights referred to in Article 15 of [Directive 2019/790], the implementation of which is accompanied by the imposition, referred to above, of an obligation on [ISSPs] to enter into negotiations with publishers, an obligation to provide publishers and/or [AGCOM] with the information necessary to determine fair compensation, and an obligation not to restrict the visibility of the publisher’s content in search results pending such negotiations;

(b)confer on [AGCOM]:

–supervisory and sanctioning powers,

–the power to identify the benchmark criteria for determining fair compensation,

–the power to determine, in the absence of agreement between the parties, the exact amount of fair compensation?’

The request for a preliminary ruling was received by the Court on 21 December 2023. Written observations were submitted by Meta, the Federazione Italiana Editori Giornali (FIEG), the Belgian, Danish, French and Italian Governments and the European Commission. Meta, FIEG, the Società italiana degli autori ed editori (Italian society for authors and publishers; ‘the SIAE’), Gedi Gruppo Editoriale SpA, the Italian, French and Polish Governments and the Commission participated in the hearing held on 10 February 2025.

Analysis

In the present case, the referring court has referred three questions for a preliminary ruling. The first two questions, which I shall analyse together, relate to the compatibility with Article 15 of Directive 2019/790 of various measures adopted by the Italian legislature concerning the nature of the remuneration payable to press publishers, the obligations on ISSPs which use press publications, and AGCOM’s powers. The third question concerns the compatibility of those measures with Articles 16 and 52 of the Charter and with Article 109 TFEU.

As a preliminary observation concerning all of the questions raised, I note that each of the dispute in the main proceedings, the request for a preliminary ruling and the observations submitted in the present proceedings reveal a profound disagreement between the interested parties as to the interpretation to be given to the provisions of Italian law at issue in the main proceedings. That disagreement is between, on the one hand, Meta, whose interpretation appears to be shared by the referring court, and, on the other hand, the Italian Government, the intervening publishers’ organisations and, according to the information provided by the Commission, AGCOM. It concerns, first, the nature of the remuneration of press publishers provided for by those provisions and, secondly, the binding nature of the obligations imposed on ISSPs and of the powers conferred on AGCOM. In the context of the preliminary ruling procedure, the Court can only define the conditions under which those provisions may be regarded as complying with EU law, since the interpretation of provisions of domestic law is a matter for the national courts alone. I shall emphasise that principle in this Opinion while reminding the referring court of the obligation incumbent on any court or tribunal of a Member State to interpret its national law, as far as possible, in a manner that is consistent with EU law.

The first and second questions referred for a preliminary ruling

By its first two questions referred for a preliminary ruling, the referring court seeks to ascertain the compatibility with Article 15 of Directive 2019/790: (1) of the obligation of fair remuneration of press publishers allegedly imposed on ISSPs (Question 1(a)), (2) of other obligations imposed on ISSPs (Question 1(b)) and (3) of AGCOM’s powers in the process of negotiations between ISSPs and press publishers (Questions 1(c) and 2). Before embarking on an analysis of those various aspects, I wish to make some general remarks on Article 15 of Directive 2019/790.

Article 15 of Directive 2019/790

In the first place, as regards the nature of the rights conferred on press publishers by Article 15 of Directive 2019/790, the first subparagraph of paragraph 1 of that article refers to the ‘rights provided for in Article 2 and Article 3(2) of Directive [2001/29]’. It will be recalled that the latter provisions confer, respectively, the exclusive right to authorise or prohibit any form of reproduction of the protected subject matter (the reproduction right) and the exclusive right to make protected subject matter available to the public in such a way that members of the public may access it from a place and at a time individually chosen by them (the right of making available to the public).

In Meta’s view, that wording of Article 15 of Directive 2019/790, referring to the provisions of Directive 2001/29, means that the rights of press publishers have exactly the same nature as the related rights referred to in that directive, that is to say, exclusive rights enabling rightholders to prohibit or authorise, possibly in return for remuneration, the use of the protected subject matter by persons wishing to use them, on the basis of the contractual freedom of both parties and without any intervention by the public authorities.

However, I am not persuaded that Article 15 of Directive 2019/790 should be interpreted in that way. If the objective of the EU legislature had been simply to create new rights related to copyright for the benefit of press publishers, it would have been sufficient for it to extend the lists of rightholders set out in Article 2 and Article 3(2) of Directive 2001/29 and possibly adapt the term of protection of the exclusive rights thus established in Directive 2006/116/EC. (9) In my view, however, the objective of Article 15 is not limited to that.

The purpose of Directive 2019/790, as is apparent, in particular, from recital 3 thereof, is to supplement EU copyright on a number of distinct points, with a view to resolving particular problems linked, inter alia, to rapid technological and economic developments in the digital environment. As regards, more specifically, the reasons for the adoption of Article 15 of that directive, those are set out, inter alia, in recitals 54 and 55 thereof, according to which the EU legislature’s primary concern was to remedy the difficulties referred to in the introduction to this Opinion.

It is true that, to that end, that legislature opted to grant press publishers exclusive rights of reproduction and making available to the public and that, according to recital 57 of Directive 2019/790, those rights must ‘have the same scope as the [respective rights] provided for in Directive [2001/29]’. However, the latter statement is contradicted by the very wording of Article 15 of that directive.

While the reproduction right, within the meaning of Article 2 of Directive 2001/29, concerns ‘direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part’ of the protected subject matter and while the right to make available to the public, within the meaning of Article 3(2) of that directive, covers any act of making available to the public the protected subject matter in such a way that members of the public may access it from a place and at a time individually chosen by them, the press publishers’ rights, provided for in Article 15 of Directive 2019/790, are much more limited in scope. Thus, those rights concern only the online use of press publishers’ publications by ISSPs. Uses by individual users of such services in a private or non-commercial capacity, as well as ‘acts of hyperlinking’, are expressly excluded. (10) Moreover, press publishers’ rights do not apply to the use of individual words or very short extracts from their publications, a limitation that does not appear to apply to other rights related to copyright. (11) On the other hand, all the exceptions and limitations applicable under Article 5 of Directive 2001/29 are also applicable to the rights of press publishers. Lastly, the term of protection of those rights, which is two years, is significantly shorter than that of other related rights, which are in principle protected for 50 years. (12)

The rights of press publishers do not, therefore, have the general nature of copyright or other related rights, but are aimed at achieving the objective of Article 15 of Directive 2019/790. That objective is not merely to allow press publishers to oppose the use of their publications by ISSPs without any financial consideration, since this would have been potentially more detrimental to publishers than to ISSPs, but to establish the conditions under which those publications are actually used, while allowing publishers to receive a fair share of the revenues derived by ISSPs from that use. Consequently, while those rights remain, in essence, exclusive and preventive rights to authorise or prohibit, I take the view that, when implementing them, Member States must have a broad discretion enabling them to take into account the objective of Article 15 of Directive 2019/790 – with all the difficulties associated with its achievement – and to provide for measures going beyond what is normally provided for in respect of the implementation of copyright and related rights, in particular by Directive 2004/48/EC. (13)

In the second place, I consider it useful to provide some clarification regarding the applicability of Article 15 of Directive 2019/790 to ISSPs such as Meta, that is to say, to providers of ‘social media’ services. The debate that took place on that subject, following a question put by the Court to the participants at the hearing, seems to me to have revealed certain misunderstandings. While it is true, as the Commission points out, that the main proceedings do not concern a specific case of application of the provisions of Italian law adopted to implement Article 15 of that directive, but the abstract review of their legality, that clarification will, it seems to me, enable a better understanding of the scope of that article and the issues involved in its implementation.

Thus, it is clear that the social network service known as Facebook, offered by Meta, meets the definition of an ‘information society service’ in Article 2(5) of Directive 2019/790, read in conjunction with Article 1(1)(b) of Directive (EU) 2015/1535. (14) However, the operating model of that service is based on content uploaded by users. The second subparagraph of Article 15(1) of Directive 2019/790 excludes from the scope of the rights of press publishers uses of their publications by users of information society services in a private or non-commercial capacity. In that context, the question arises as to the extent to which the use of press publications in the context of a social network must be regarded as being covered by the rights provided for in Article 15 of that directive.

Users of a social network are likely to share press publications on their accounts. Where that is done in a private capacity (that is to say, when the content is visible only to a limited circle of recipients which may be classified as private) or a non-commercial capacity (that is to say, not connected with any profit-making activity of the user in question), those acts do not fall within the exclusive rights of press publishers under the second subparagraph of Article 15(1) of Directive 2019/790.

However, as several participants at the hearing pointed out, the Facebook network is not merely a passive place for sharing content between users. By means of sophisticated algorithms, it suggests specific content to users according to their supposed centres of interest, without those users having carried out any search for that content or it being suggested to them by other users. Facebook is, therefore, a truly autonomous content provider, whose specific characteristic is that the content is neither created nor purchased by it: that content is uploaded by users and Facebook is then responsible for offering it to users. Such use cannot, in my view, be attributed to users, but must be regarded as being carried out by the ISSP, namely Meta, and, therefore, in so far as it concerns press publications, as falling within the exclusive rights of publishers.

By contrast, where press publishers themselves share their own publications on a social network such as Facebook, they cannot claim any remuneration in respect of the rights provided for in Article 15 of Directive 2019/790, including for subsequent uses of those publications by the social network within the framework provided for in the conditions for the supply of the service in question. That follows from the nature of those rights as exclusive rights. The holder of such a right who has himself or herself made the protected subject matter available to the public on a social network or on any other information society service should be presumed to have given his or her authorisation for the use of that subject matter in accordance with the conditions for the supply of the service in question. (15)

The right to fair compensation

By Question 1(a), the referring court asks whether Article 15 of Directive 2019/790 precludes the granting to press publishers of the right to ‘fair compensation’ in addition to, or replacing, the exclusive right laid down in that article. Meta submits, in its action in the main proceedings and in its observations in the present case, that such a right was established by the provisions of Italian law adopted to transpose that article. The referring court appears to share that view. The Italian Government, on the other hand, states that that interpretation of the national provisions at issue is incorrect, since the ‘fair compensation’ in question is merely the result of negotiations between press publishers and ISSPs relating to the use of press publications by the latter.

It is true that the use of the term ‘fair compensation’ in paragraph 8 of Article 43 bis of Law No 633/1941 is not opportune, in so far as that term does not refer to an exclusive right of a preventive nature, such as those laid down in Article 15 of Directive 2019/790, but merely to a right to remuneration or compensation, without any possibility for the rightholder to object to the use of the protected subject matter. (16) It is now settled case-law that the holders of an exclusive right which is of a preventive nature, whether it falls within the scope of copyright or related rights, cannot be deprived, even in return for financial consideration, of the option of giving their authorisation prior to any use of the protected subject matter, subject to the exceptions and limitations to that right provided for by the relevant provisions of EU law. (17) While the procedures for such authorisation may be adjusted, including through collective management of rights or (rebuttable) presumptions, the principle of prior consent persists. (18) Thus, in so far as the rights of press publishers, provided for in Article 15 of Directive 2019/790, are exclusive rights of a preventive nature, transforming those rights into a mere right to obtain fair compensation for the use of publishers’ publications by ISSPs, without any possibility for publishers to oppose that use, would be contrary to that provision.

Moreover, like other provisions of EU law establishing rights related to copyright, Article 15 of Directive 2019/790 must, in my view, be interpreted as a measure of full harmonisation of the substantive content of the rights conferred by it. (19) It is, therefore, not open to the Member States to provide for the right to fair compensation in addition to those rights. In particular, ISSPs cannot be required to pay such compensation where they do not use press publications protected under that provision.

Lastly, recital 82 of Directive 2019/790 states that nothing in that directive should be interpreted as preventing holders of copyright and related rights from authorising the use of their works or other subject matter for free. Assuming that that also concerns the rights provided for in Article 15 of that directive, that article should be interpreted as meaning that press publishers are free to grant licences for the use of their publications without requiring monetary compensation. That is inherent in the very nature of an exclusive right, which does not contain an inalienable right to remuneration.

However, paragraph 8 of Article 43 bis of Law No 633/1941 must be read in the light of all the provisions of that Article 43 bis and the implementing provisions. With regard to the system established by those provisions, it appears that prior authorisation from press publishers is required for the use of their publications by ISSPs, that authorisation having to be given at the end of free, albeit assisted, negotiations between the parties. Moreover, that article does not appear to preclude publishers, inter alia, from refusing to give their authorisation or from granting it free of charge. As regards ISSPs’ obligation to conclude a contract with press publishers, that appears to be linked to the actual use of press publications by ISSPs or, at the very least, the intention of such use. There is, therefore, no question of payment without use.

Thus, it would appear to follow from a reading of the Italian provisions at issue that the term ‘fair compensation’ designates, as the Italian Government submits, the remuneration which press publishers may obtain from ISSPs for the use of their publications covered by the rights protected under Article 15 of Directive 2019/790. Indeed, the Italian legislature started from the principle that such remuneration should be fair.

In any event, Article 15 of Directive 2019/790 must be interpreted as meaning that it does not preclude domestic provisions of a Member State which provide for the right of press publishers to obtain fair remuneration in return for their authorisation for ISSPs to use their publications, provided that those provisions, first, do not deprive publishers of the possibility to refuse to grant their authorisation or to give it free of charge and, secondly, do not impose on ISSPs any payment obligation unrelated to any actual or intended use of press publications. It is for the referring court to ascertain whether those conditions are met, taking into account the obligation of every court of a Member State to interpret its national law, as far as possible, in a manner that is consistent with EU law.

The obligations incumbent on ISSPs

By Question 1(b), the referring court asks, in essence, whether Article 15 of Directive 2019/790 must be interpreted as precluding an obligation on ISSPs to enter into negotiations with publishers, to provide the information necessary to determine the remuneration due and not to limit the visibility of publishers’ content during the negotiation period. The referring court’s doubts arise from the fact that the Italian legislature went beyond the normative content of that provision and introduced public intervention mechanisms in an area which, in its view, should be governed solely by the wishes of the interested parties expressed in free negotiations.

However, that does not seem to me to be sufficient to conclude that the Italian legislation is incompatible with Article 15 of Directive 2019/790.

While, as I have already mentioned, the provisions of EU copyright establishing protected rights, such as Article 15 of Directive 2019/790, must be regarded as constituting a measure of full harmonisation of the substantive content of those rights, (20) the same is not true of measures implementing those rights. Indeed, directives are binding on the Member States as to the result to be achieved, leaving to them the choice of form and methods.

The Member States therefore, where they consider it necessary, have the power to organise the exercise of exclusive rights in such a way as to ensure their effectiveness. That is the case, in particular, for the rights established in Article 15 of Directive 2019/790, the objective of which is to determine the conditions enabling press publishers to obtain remuneration for the online use of their publications. (21) In view of the significant market imbalance between those publishers and ISSPs, Member States are entitled to adopt measures to remedy it by imposing, inter alia, specific obligations on providers as regards conducting negotiations with a view to obtaining authorisation to use those publications.

Such additional obligations are, therefore, not contrary to Article 15 of Directive 2019/790, provided that they do not affect, inter alia, the nature of the rights established in that provision as exclusive rights of a preventive nature. The obligations imposed on ISSPs, referred to in Question 1(b), do not seem to me to be in conflict with that condition.

Thus, the obligation to enter into negotiations with press publishers, which, according to Meta, is apparent from a reading of paragraphs 8 to 10 of Article 43 bis of Law No 633/1941, appears to apply only in the case of actual or intended use of press publications by an ISSP. In so far as Article 15 of Directive 2019/790 grants publishers exclusive rights for such uses, it is natural that ISSPs must obtain prior authorisation from publishers, the conditions for the grant of which must be negotiated between the interested parties.

However, that provision of national law cannot be interpreted in conformity with Article 15 of Directive 2019/790 as requiring ISSPs to negotiate the authorisation of press publishers for uses which ISSPs do not envisage or to use publishers’ publications where they do not wish to do so.

46.In particular, such an obligation does not appear to follow from the prohibition on ISSPs, during the negotiations in question, on concealing press publishers’ publications in search results. In the first place, where it is a question of the publications which appear in the search results, it may be presumed that they are used under the conditions referred to in Article 15 of Directive 2019/790. In the second place, since that prohibition applies in the context of negotiations between providers and publishers, those negotiations appear to constitute the event prior to the triggering of that prohibition. There is, therefore, no question of a general obligation on ISSPs to use press publications in a manner covered by the exclusive rights set out in that article.

47.That prohibition therefore appears to be intended solely to prevent any abusive behaviour by ISSPs, which, owing to their dominant position on the market, might attempt to exert pressure on publishers or to conceal the economic value which the use of the press publications represents for them.

48.Lastly, the purpose of the obligation to disclose certain information is clearly to redress the imbalance, in that regard, between press publishers and ISSPs. Only ISSPs possess the information enabling the economic value of online use of press publications to be assessed. In a market in which the pure interplay of supply and demand cannot fulfil its function, owing to the near-monopoly situation of the most important ISSPs and the publishers’ dependence on those providers, transparency concerning access to that information would appear essential for ensuring the fairness of the negotiations concerning the publishers’ authorisation to use their publications.

49.Such an obligation is not, however, in any way incompatible with the exclusive and preventive nature of the rights conferred on press publishers by Article 15 of Directive 2019/790. The fact that rightholders are free to authorise the use of their protected subject matter and that potential users are free to apply for such authorisation does not prevent the legislature from adopting measures to ensure the fairness of the negotiations once the interested parties decide to enter into them.

50.In conclusion, Article 15 of Directive 2019/790 must be interpreted as not precluding the various obligations imposed on ISSPs by the Italian provisions at issue in the main proceedings, subject to compliance with the conditions set out in point 37 of this Opinion.

The powers of AGCOM

51.By Question 1(c) and Question 2, the referring court asks, in essence, whether Article 15 of Directive 2019/790 must be interpreted as precluding national provisions which, in the context of negotiations conducted with a view to the grant, by press publishers, of authorisation to use their publications to ISSPs, confer on a public entity such as AGCOM certain powers, namely the power to monitor and impose penalties, the power to define the benchmark criteria for determining the remuneration payable by ISSPs to publishers, the power to determine the exact amount of such compensation where no agreement between the parties is reached and, lastly, the power to penalise ISSPs’ failure to comply with the obligation to disclose information.

52.In a similar vein to the question of the obligations imposed on ISSPs, the referring court has doubts as to whether such a power of interference, on the part of a public entity, is compatible with the principle of free negotiations between parties that derives, in its view, from the exclusive and preventive nature of the rights conferred on press publishers in Article 15 of Directive 2019/790.

53.Once again, I do not believe that such a power of interference can be regarded as contrary to that provision. Generally speaking, as a result of the wide discretion which they enjoy in transposing the provisions of a directive, such as Article 15 of Directive 2019/790, Member States may provide for measures of public intervention concerning negotiations for the grant of authorisations for use, provided that that intervention does not deprive the parties of the freedom to apply for and to grant such authorisations, and to determine the conditions of such granting. Consequently, the national provisions at issue in the main proceedings, in order to comply with that article, must be interpreted as conferring on the public authority – in the present case, AGCOM – not enforcement power as regards the conclusion of the contract and its terms, but only powers to assist the parties and, where appropriate, to monitor compliance by the parties with their obligations.

54.More specifically, the criteria established by AGCOM for determining the amount of the remuneration to be paid by ISSPs, and the amount which may be determined by that authority of its own motion in the absence of an agreement between the parties, do not seem to me to be binding on the parties, who remain free to conclude or not to conclude the contract on the basis of those proposals or to fix a different amount in respect of that remuneration. Such public intervention, limited to measures of assistance to the parties, seems to me to be justified, since the rights in question are rights that have been recently created whose market value has hence not yet been clearly determined, and the market is one on which there is a relationship of dominance and dependence between the players. Moreover, in so far as the parties remain free to determine the final terms of their relationship, that intervention does not appear to me to be incompatible with the exclusive and preventive nature of the rights granted to press publishers by Article 15 of Directive 2019/790.

55.As regards AGCOM’s monitoring power and power to impose penalties in the light of compliance by the ISSPs with their obligation to disclose information, I would restate (22) that, in my view, that obligation is consistent with Article 15 of Directive 2019/790. A public authority’s power to monitor compliance with that obligation, coupled with possible penalties in the event of non-compliance, cannot, therefore, be regarded as contrary to that provision, subject to observance of the principle of proportionality.

56.Thus, Article 15 of Directive 2019/790 must be interpreted as meaning that, as in the case of the obligations imposed on ISSPs, it does not preclude AGCOM’s powers under the Italian provisions at issue in the main proceedings, in so far as those provisions do not deprive interested parties of the freedom to apply for and to grant authorisation to use press publications online and to determine the amount of any remuneration in respect of that authorisation.

Final comments on Article 15 of Directive 2019/790 and answer to the questions

57.Two comments seem necessary to me in order to complete the analysis of Article 15 of Directive 2019/790.

58.First, I note that, under paragraph 11 of Article 43 bis of Law No 633/1941, where the parties are unable to reach an agreement even on the basis of the amount of the remuneration determined by AGCOM, either of them may bring legal proceedings. Since that question was not raised by the referring court, the subject matter of such an action is not entirely clear. It is true that that provision refers to a specific remedy under Italian law which, according to the Government of that Member State, merely makes it possible to establish an abuse by one of the parties of the other party’s economic dependence. However, that indication is preceded by the word ‘including’, (23) which could suggest that actions with other subject matters are also possible.

59.In my view, it would be problematic if one of the interested parties, in particular an ISSP, could use the courts to force the other party to conclude a contract and give its authorisation to use press publications. Such a possibility would indeed be at odds with the exclusive nature of the rights conferred on press publishers in Article 15 of Directive 2019/790. In order to comply with that provision, the domestic law of a Member State must, therefore, be interpreted as precluding such a possibility.

60.Secondly, Meta submits in its observations that the measures taken by the Italian legislature to implement Article 15 of Directive 2019/790 depart to such an extent from the wording of that article, as well as from measures taken to that end by other Member States, that they lead to a fragmentation of the internal market as regards the rights of press publishers, thereby jeopardising the objective of harmonisation pursued by the EU legislature.

61.It seems to me, however, that a certain fragmentation of the internal market is inherent in copyright and related rights, at least at the current stage of development of EU law in that area. Licences to use the protected subject matter are generally granted for a given Member State and the collective management of those rights is organised on a national basis. Thus, harmonisation in that area relates mainly to the content of protected rights, (24) while the arrangements for using those rights remain governed by the national legal systems and may, therefore, differ from one Member State to another.

62.The rights of press publishers, referred to in Article 15 of Directive 2019/790, are no exception here. Authorisations to use press publications must be negotiated and obtained in accordance with the rules in force in each Member State, which are necessarily different from those of other Member States. However, I do not consider that that undermines the harmonisation objective of that article, which concerns the content of publishers’ rights. Moreover, the Italian Republic is not, to my knowledge, the only Member State to have adopted rules which go beyond the mere assertion of exclusive rights for press publishers. (25)

63.I therefore propose that the answer to the first and second questions should be that Article 15 of Directive 2019/790 must be interpreted as not precluding national provisions of a Member State which

–confer on press publishers the right to obtain fair remuneration in return for the authorisation for ISSPs to use their publications,

–impose on ISSPs wishing to use such publications certain obligations concerning negotiations with those publishers, disclosure of information and good faith during negotiations,

–confer on a public entity the power to regulate, monitor and penalise, including the option to propose criteria for determining the remuneration due to publishers or the amount of that remuneration,

provided that those provisions do not deprive publishers of the possibility of refusing to grant such authorisation or of granting it free of charge, that they do not impose on ISSPs any payment obligation unrelated to the actual or intended use of such publications, and that they do not restrict the contractual freedom of the parties in a binding manner. It is for the referring court to ascertain whether those conditions are met, taking into account the obligation of every court of a Member State to interpret its national law, as far as possible, in a manner that is consistent with EU law.

The third question referred for a preliminary ruling

64.By its third question, the referring court asks, in essence, whether Articles 16 and 52 of the Charter and ‘the [principle] … of free competition, referred to in Article 109 TFEU’ must be interpreted as precluding national provisions, as described in point 62 of this Opinion, adopted to transpose Article 15 of Directive 2019/790.

65.It should be noted at the outset that Article 109 TFEU does not contain such a principle, since it concerns the powers of the EU institutions to adopt measures implementing Articles 107 and 108 TFEU relating to State aid. However, in the grounds of its decision, the referring court refers, inter alia, to Article 119 TFEU as a source of that principle. In its observations, Meta also refers to the latter provision. However, while it is true that Article 119 TFEU refers twice to an ‘open market economy with free competition’, it is to be found in the introductory part of Title VIII, entitled ‘Economic and monetary policy’, of the FEU Treaty and deals with the way in which the Member States must coordinate their economic policies. That article is therefore not relevant to reviewing the measures taken by the Member States to transpose harmonising provisions in an area such as copyright.

66.Since neither Article 119 TFEU nor, still less, Article 109 TFEU are relevant for the purposes of the review of the conformity of the national provisions at issue in the main proceedings, I shall confine my analysis of the third question to the provisions of the Charter alone.

67.Article 16 of the Charter provides that ‘the freedom to conduct a business in accordance with Union law and national laws and practices is recognised’. (26) The Court has already had occasion to observe that, having regard to the wording of that provision, which differs from the wording of the other fundamental freedoms laid down in Title II thereof, yet is similar to that of certain provisions of Title IV of the Charter, the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest and must be viewed in relation to its social function. That circumstance is reflected, inter alia, in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented. (27) Moreover, a fair balance must be struck between the freedom to conduct a business and other fundamental rights, in particular the protection of intellectual property, enshrined in Article 17(2) of the Charter. (28)

68.As regards the content of the freedom to conduct a business, the Court has held that it covers, inter alia, the freedom to exercise an economic or commercial activity, freedom of contract and free competition. (29)

69.Thus, limitations on the freedom to conduct a business introduced in the public interest may be regarded as contrary to that freedom only in exceptional cases, namely where they are manifestly disproportionate or adversely affect its essence. (30)

70.In my view, that is not the case with the national measures at issue in the present case, as described in point 62 of this Opinion, as long as they satisfy the conditions set out therein. Those measures were taken with the public interest objective, recognised by the EU legislature when it adopted Directive 2019/790, of strengthening the position of press publishers, who are important actors in any democratic society, vis-à-vis ISSPs. In so far as the Italian provisions do not require the parties concerned to enter into commercial relations under specific conditions in a binding manner, I do not see how they would undermine the essence of the freedom to pursue an economic activity or that of freedom of contract. Nor do the various obligations imposed on ISSPs or the powers available to AGCOM appear to me to be manifestly disproportionate in the light of the difficulties faced by press publishers in collecting the revenue due for the use of their publications online.

71.As regards free competition, the element of the freedom to conduct a business to which Meta and the referring court refer, it should be noted that it includes, inter alia, the prohibition of abuse of a dominant position on the market, enshrined in EU law in Article 102 TFEU. ISSPs play a double role in relation to press publishers: they are both their providers, as regards various online communication services, and their competitors, both on the market for the dissemination of information and on the advertising market. In that dual capacity, ISSPs are therefore particularly likely to commit abuses of their possible dominant position on various markets on which press publishers are also active. Thus, measures intended to strengthen publishers’ bargaining power must be regarded not as undermining free competition, but as promoting it.

72.Accordingly, I am of the view that Article 16 of the Charter, together with Article 52 thereof, which merely confirms the possibility, inherent in the freedom to conduct a business, of providing for limitations on the rights enshrined in the Charter, must be interpreted as not precluding national provisions, as described in point 62 of this Opinion, subject to the conditions set out therein.

Conclusion

In the light of all of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Tribunale Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio, Italy) as follows:

Article 15 of 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, and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union,

must be interpreted as not precluding national provisions of a Member State which

–confer on press publishers the right to obtain fair remuneration in return for authorising information society service providers to use their publications,

–impose on information society service providers wishing to use such publications certain obligations concerning negotiations with publishers, disclosure of information and good faith during negotiations,

–confer on a public entity the power to regulate, monitor and penalise, including the option to propose criteria for determining the remuneration due to publishers or the amount of that remuneration,

provided that those provisions do not deprive press publishers of the possibility of refusing to grant such authorisation or that of granting it free of charge, that they do not impose on information society service providers any payment obligation unrelated to the actual or intended use of such publications, and that they do not restrict the contractual freedom of the parties in a binding manner.

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Original language: French.

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The example of the Australian News Media Bargaining Code is often cited as a reference.

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3

See, inter alia, Rosati, E., ‘Neighbouring Rights for Publishers: are National and (possible) EU Initiatives Lawful?’, International review of intellectual property and competition law, 2016, Vol. 47(5), p. 569. Moreover, the German provisions have been the subject of legal proceedings because they were not notified as rules relating to services (see judgment of 12 September 2019, VG Media, C‑299/17, EU:C:2019:716). By contrast, Spanish publishers encountered blackmail by the operator of the largest internet search engine, which stopped including their publications in its aggregation service.

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4

See, inter alia, IVIR Institute for Information Law, Academics Against Press Publishers’ Right, open letter of 24 April 2018 (https://www.ivir.nl/academics-against-press-publishers-right); Geiger, Ch., Bulayenko, O., Frosio, G.F., ‘The Introduction of a Neighbouring Right for Press Publishers at EU Level: the Unneeded (and Unwanted) Reform’, European Intellectual Property Review

, 2017, Vol. 39(4), p. 202; Colangelo, G., Torti, V., ‘Copyright, Online News Publishing and Aggregators: A Law and Economics Analysis of the EU Reform’, International Journal of Law and Information Technology, 2019, Vol. 27(1), p. 75; Sganga, C., Contardi, M., ‘When Harmonisation Leads to Fragmentation (and Potential Invalidity Claims): Snapshots from the Implementation of the New Press Publishers’ Right’, European Intellectual Property Review, 2022, Vol. 44(8), p. 472; and, recently, Balasingham, B., Kozak, M., Ruiz Palacios, T.A., ‘Fair P(l)ay in the Digital Arena – In Search of a Balanced Relationship Between Press Publishers and Digital News Aggregators’, International Review of Intellectual Property and Competition Law, 6 May 2025.

Furgał, U., ‘The Emperor Has No Clothes: How the Press Publishers’ Right Implementation Exposes Its Shortcomings’, GRUR International, 2023, Vol. 72(7), p. 650.

6

OJ 2019 L 130, p. 92.

7

Directive 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).

8

GURI No 166 of 16 July 1941.

9

Directive of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (OJ 2006 L 372, p. 12).

It is not specified whether that is also true of hyperlinks, which, according to the judgment of 8 September 2016, GS Media (C‑160/15, EU:C:2016:644), constitute acts of communication to the public within the meaning of Article 3 of Directive 2001/29.

11

See judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, point 1 of the operative part).

12

Article 3 of Directive 2006/116.

13

Directive of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45).

14

Directive of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ 2015 L 241, p. 1).

15

See, by analogy, judgment of 16 November 2016, Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 35 et seq.).

16

According to some writers of the legal literature, that ‘terminological shift’ can be explained by the association made with compensation under the private copying exception. See Sganga, C., Contardi, M., ‘The new Italian Press Publishers’ Right: Creative, Fairness-oriented … and Invalid?’, Journal of Intellectual Property Law & Practice, 2022, No 5, pp. 421 to 428. ‘Fair compensation’ is mentioned in Article 16 of Directive 2019/790, which provides that press publishers are to have the right to receive part of that compensation paid in respect of the works for which those publishers have acquired the rights of use.

17

See, most recently, judgment of 6 March 2025, ONB and Others (C‑575/23, EU:C:2025:141, paragraphs 105 and 106 and the case-law cited).

18

See judgment of 14 November 2019, Spedidam (C‑484/18, EU:C:2019:970, paragraphs 42 and 43).

19

See, by analogy, judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, point 5 of the operative part).

Judgment of 29 July 2019, Pelham and Others (C‑476/17, EU:C:2019:624, point 5 of the operative part).

21

See point 25 of this Opinion.

22

See points 47 and 48 of this Opinion.

23

As a reminder, according to that provision, ‘where, following the determination of fair compensation by [AGCOM], the parties do not conclude a contract, either party may bring the matter before the chamber of the ordinary court specialising in business matters …, including in order to bring the action referred to in Article 9 of Law No 192 of 18 June 1998’.

24

And, to a lesser extent, their protection and collective management.

Such measures have been taken, inter alia, in Belgium, France and Spain (see: Furgał, U., op.cit.).

26

Emphasis added.

27

Judgment of 22 January 2013, Sky Österreich (C‑283/11, EU:C:2013:28, paragraphs 45 to 47).

28

See, inter alia, judgment of 15 September 2016, Mc Fadden (C‑484/14, EU:C:2016:689, paragraphs 81 to 83).

29

Judgment of 2 June 2022, Skeyes (C‑353/20, EU:C:2022:423, paragraph 48).

30

See, to that effect, inter alia, judgment of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraphs 82 to 88).