By its judgment of 12 May 2026 in Case C-797/23 (Meta Platforms), the Court of Justice of the European Union addressed the interpretation of Article 15 of Directive (EU) 2019/790 and provided important clarification regarding the scope of discretion afforded to Member States in its implementation.
The ruling is of particular significance in relation to the Italian implementation model (Article 43-bis of Law No. 633/1941), which is characterised by the regulatory intervention of AGCOM, the Italian Communications Authority.
The proceedings originated from a request for a preliminary ruling submitted by the Regional Administrative Court of Lazio (TAR Lazio) concerning the compatibility with EU law of the Italian framework governing fair compensation payable to publishers for the online use of publications, including the obligations imposed on service providers, primarily digital platforms, as well as the regulatory, decision-making and sanctioning powers granted to AGCOM.
Meta argued, inter alia, that the Italian legislative framework exceeded the scope of Article 15 of the Directive, which is based on exclusive rights rather than on an autonomous right to remuneration, and further contended that the national rules disproportionately interfered with the freedom to conduct a business.
The Court reaffirmed that Article 15 (1) of the Directive grants publishers: (i) the exclusive right of reproduction; and (ii) the exclusive right of making available to the public. Member States may not alter either the nature or the substance of such rights, for example by transforming them into a mere right to compensation.
At the same time, however, the Court clarified that the recognition of fair compensation remains fully compatible with EU law, provided that such compensation constitutes consideration for the authorisation granted by the publisher for the use of the protected content.
For this condition to be satisfied, publishers must retain the ability both to refuse authorisation and to grant it free of charge, while no payment obligation may arise in the absence of actual use of the content.
Accordingly, the Italian system remains firmly grounded in the logic of exclusive rights of the EU legislative framework.
In this regard, Italian legislation imposes upon providers obligations to negotiate with publishers, disclose relevant data and refrain from limiting the visibility of content during negotiations. The Court characterised these measures as modalities governing the exercise of the rights provided under Article 15 and, in any event, as falling within the margin of discretion enjoyed by Member States.
Such obligations were considered legitimate by the Court insofar as they seek to rebalance the informational and contractual asymmetry affecting publishers and ensure their effective power to negotiate. Indeed, it is widely acknowledged that only digital platforms possess the data necessary to quantify the economic value generated by the use of publications.
As regards AGCOM’s powers, the Court likewise considered them compatible with the European regulatory framework, insofar as they constitute enforcement mechanisms for the exercise of rights without affecting their substantive nature and operate only where content is actually used, or intended to be used.
The CJEU therefore concluded that national legislation such as the Italian framework is compatible with EU law where it:
- recognises a right to fair compensation in favour of publishers;
- imposes procedural and information-related obligations on platforms;
- grants regulatory and decision-making powers to an independent authority,
provided that:
- the voluntary nature of the authorisation is preserved;
- no payment obligations arise independently of actual use;
- the principle of proportionality is respected.
The judgment therefore confirms the hybrid nature of the European model, which is founded upon exclusive rights coordinated through the implementation of robust regulatory mechanisms within digital markets. In this respect, the ruling fully confirms the central role played by independent authorities in the relationship between platforms and providers.
From a broader systematic perspective, the decision strengthens an interpretation of Article 15 of Directive 2019/790 aimed at ensuring the effective economic protection of rights and safeguarding media pluralism as a fundamental principle of the European legal order.