Opinion of Advocate General Szpunar delivered on 27 November 2025.

• Jurisdiction: European Union
• Celex Number: 62024CC0421
• ECLI: ECLI:EU:C:2025:928
• Date: 27 November 2025
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 27 November 2025 (1)

Case C‑421/24

Autorità per le Garanzie nelle Comunicazioni (AGCOM)

v

Google Ireland Limited

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

( Reference for a preliminary ruling – Directive 2000/31/EC – Article 1(5)(d) – Advertising of gambling – Article 14(1) – Exemption from liability of intermediary hosting services – Partnership agreement between a hosting service provider and a user )

I. Introduction

1. A Member State has decided to prohibit all forms of advertising of gambling on its territory. Given the lack of harmonisation in this area and the recognition of the harmful consequences of gambling for individuals and society, such a prohibition may, in principle, be permitted under EU law.

2. A different question concerns enforcement of such a prohibition, specifically against whom. In particular, the discretion conferred on Member States in the gambling sector must be balanced against the free movement of information society services, under Directive 2000/31/EC. (2)

3. Can a total ban on the advertising of gambling be enforced against a hosting service provider that operates a video-sharing platform storing third-party content containing such advertising? That is the question raised in the present reference for a preliminary ruling. In order to settle the question, the Court of Justice is invited first to examine whether Directive 2000/31 applies to the activity of that hosting service provider. If so, it will next need to consider whether such a service provider falls within the scope of the exemption from liability laid down in Article 14(1) of that directive. In the affirmative, it will finally be required to assess whether the service provider satisfies the conditions for relying on that legal provision.

II. Legal framework

A. European Union law

4. Recitals 12, 21 and 42 of Directive 2000/31 are worded as follows:

‘(12) It is necessary to exclude certain activities from the scope of this Directive, on the grounds that the freedom to provide services in these fields cannot, at this stage, be guaranteed under the Treaty or existing secondary legislation; …

…

(21) … the coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting …

…

(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.’

5. Article 1(5) of that directive provides:

‘This Directive shall not apply to:

(a) the field of taxation;

(b) questions relating to information society services covered by Directives 95/46/EC ^[(3)^] and 97/66/EC ^[(4)^];

(c) questions relating to agreements or practices governed by cartel law;

(d) the following activities of information society services:

– the activities of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority,

– the representation of a client and defence of his interests before the courts,

– gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions.’

6. Under Article 2(h)(i) of that directive:

‘The coordinated field concerns requirements with which the service provider has to comply in respect of:

…

– the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider’.

7. According to Article 3(1) and (2) of that directive:

‘1. Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2. Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’

8. Section 4 of that directive is entitled ‘Liability of intermediary service providers’. Article 14 thereof, headed ‘Hosting’, provides, in paragraphs 1 and 2:

‘1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information … or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.’

B. Italian law

9. Article 9 of decreto-legge n. 87 – Disposizioni urgenti per la dignità dei lavoratori e delle imprese (Decree-Law No 87 – Urgent provisions for the dignity of workers and undertakings) of 12 July 2018 (GURI No 161 of 13 July 2018; ‘Decree-Law No 87/2018’) prohibits any form of advertising, including indirect advertising, in relation to games or betting with monetary winnings and gambling, however carried out and by any means. It also introduces an administrative fine in the event of infringement of that prohibition, payable by, inter alia, the ‘owner of the means or the site on which those advertisements are broadcast’, of an amount equal to 20% of the value of the sponsorship or advertising and, in any event, not less than EUR 50 000. It further gives the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy; ‘AGCOM’) the power to apply those penalties.

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

10. By decision of 19 July 2022 (‘the contested decision’), AGCOM imposed on Google Ireland Limited (‘Google’) a fine of EUR 750 000 for having promoted numerous websites for games with monetary winnings on the video-sharing platform YouTube, in breach of Article 9 of Decree-Law No 87/2018. In particular, AGCOM found that 630 videos (‘the videos at issue’) were uploaded to five channels belonging to the content creator Spike, with which Google had signed a commercial partnership agreement within the framework of the YouTube Partnership Programme (YPP). Accordingly, AGCOM ordered Google to remove those videos from YouTube, as well as any other videos shared by Spike that were similar in content to those identified in the contested decision. Further to the contested decision, Google deleted the videos at issue from YouTube.

11. Google challenged the contested decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which upheld the action. That court considered that the features of Google’s activity relied on by AGCOM were insufficient to prevent Google from benefiting from the exemption from liability provided for under Italian legislation transposing Article 14 of Directive 2000/31.

12. AGCOM appealed that judgment before the Consiglio di Stato (Council of State, Italy), the referring court. It submitted, first, that Directive 2000/31 does not apply to the present case, since Article 1(5)(d) thereof excludes from its scope ‘gambling activities’ that involve wagering a stake with monetary value in games of chance. Consequently, the prohibition laid down in Article 9 of Decree-Law No 87/2018 is enforceable against hosting service providers. Secondly, even if Google’s activity were not excluded from the scope of Directive 2000/31, the exemption from liability laid down in Article 14(1) of that directive would not apply, due to the commercial partnership agreement signed between Google and the content creator.

13. For its part, before the referring court, Google claims that Article 1(5)(d) of Directive 2000/31 covers only online gambling service providers. By contrast, it does not include hosting service providers. In so far as concerns the application of Article 14(1) of that directive, Google argues that it is a ‘passive’ hosting service provider and that it was not aware of the illegality of the videos at issue. In particular, it submits that there is no ad personam contract with the content creator since the latter becomes part of the YPP merely by accepting a standard contract drawn up unilaterally by Google.

14. As regards, first, the exclusion of gambling activities from the scope of Directive 2000/31, the referring court considers that, in the light of recital 21 thereof, all activities related to the gambling sector, including online advertising, are to be excluded from the scope of that directive.

15. Secondly, should the Court find that Directive 2000/31 applies to the activities of hosting services, the referring court seeks to clarify whether, in the circumstances of the present case, Google falls within the scope of the exemption from liability laid down in Article14(1) of that directive.

16. In that regard, the referring court points out that that regime is to apply to ‘passive’ hosting service providers only.

17. Against this background, the referring court highlights the following main features of...