EU Court of Justice Advocate General Maciej Szpunar is pointing the finger at Italy in the dispute, which pits it in several cases against web service platforms and online search engines such as Airbnb, Google, Amazon and Vacation Rentals. In particular, it suggests that “a Member State cannot impose general and abstract obligations on an online service provider operating in its territory but established in another Member State” and the reference is to what is provided by Italian legislation, such as registration in the register, regular transmission of a series of information to the administrative authority and economic contributions.
In the conclusions made by the Court, which remain an indication for the subsequent decisions of the judges, but are not binding for them, it is recalled that these operators are subject to certain obligations: they must register in the register, regularly submit a number of information to the administrative body and pay a financial contribution. With the provision of related sanctions in case of non-compliance.
Obligations that platforms challenge before Italian judges. According to the companies’ theory, “they oppose an EU regulation that promotes fairness and transparency for business users of online intermediation services, while Italy claims that the legislation in question applies Union rules”.
EU companies (with the exception of US-based Expedia) believe that the obligations in particular violate “the principle set out in the E-Commerce Directive that information society services are in principle subject to the law of the provider’s Member State of establishment (in this case Ireland or Luxembourg) “.
After being asked about this problem by Italian judges, the Court tried to solve it. And this is where Advocate General Szpunar’s conclusions fit in. For which the E-Commerce Directive “effectively excludes the application of such obligations of a general and abstract nature to an online service provider established in another Member State”. In addition, regarding the regulation that promotes fairness and transparency for commercial users of online intermediary services, the lawyer “believes that the obligations established by Italian legislation do not constitute an application measure of this regulation. The latter therefore does not justify them.’
According to the lawyer, “a member state can collect information only in relation to the obligations imposed on it by this regulation and the objectives pursued by this regulation”.