Mateusz Milek , 5 juin 2023

In its judgment of 27 April 2023, C-70/22 Viagogo, the Court of Justice of the European Union (‘CJEU’) held that the reference for a preliminary ruling concerning a Swiss undertaking providing services in Italy for a period exceeding 90 days in a calendar year is inadmissible.

Viagogo is an undertaking established in Geneva that operates websites on which consumers might buy second-hand tickets for entertainment and sports events from other consumers who purchased them from authorized distributors on the primary market. Viagogo brings together potential sellers and purchasers, by offering ancillary services such as telephone and e-mail assistance, price suggestions based on software and an automated system for promoting tickets for certain performances or events.

Because of the risk that such websites might be used to launder money coming from illegal activities, and since the price at which tickets are sold on the secondary market no longer bears any relation to the price at which those tickets are offered on the primary market, the Italian legislature has adopted legislative measures designed to curb that phenomenon. Based on the newly introduced legislation, the Autorità per le Garanzie nelle Comunicazioni (AGCOM, Communications Regulator, Italy) imposed an administrative fine of EUR 3 700 000 on Viagogo. The national authority accused this undertaking of committing several infringements by means of its website consisting in the sale between March and May 2019 of tickets for concerts and performances, without Viagogo being the owner of the systems for issuing those tickets, at prices higher than the nominal prices indicated on the authorised sales sites. 

Viagogo brought an action for annulment of that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which dismissed that action. It subsequently lodged an appeal against the judgment at first instance in the main proceedings before the Consiglio di Stato (Council of State, Italy). In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer to the Court of Justice questions for a preliminary ruling concerning the interpretation of Article 56 TFEU, Article 102 TFEU, in conduction with Article 106 TFEU and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘e-Commerce directive’).

Firstly, the CJEU found out that the e-Commerce directive is not applicable ratione personae to the dispute in the main proceedings. It explained that this directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services ‘between the Member States’ whereas Viagogo is established Switzerland, a country outside the European Union.

Secondly, the CJEU held that Viagogo cannot rely on the freedom to provide services established under Article 56 TFEU either. The CJEU pointed out to Article 5(1) of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons EU-Switzerland (‘EU-Switzerland Agreement on the free movement of persons’) according to which Swiss service providers are granted ‘the right to provide a service in the territory of the other Contracting Party for a period not exceeding 90 days’ of actual work in a calendar year. Viagogo, by contrast, provides services for a longer duration than that provided for by the EU-Switzerland Agreement on the free movement of persons.

Thirdly, by referring to its well-established case-law (Case 244/80 Foglia), the CJEU recalled that the preliminary reference procedure established by Article 267 TFEU does not enable the CJEU to give advisory opinions on general or hypothetical questions. Since the referring court made no explanation in its request for a preliminary ruling as to the reasons that prompted it to inquire about the interpretation of Article 102 and 106 TFEU contrary to the requirements laid down in Article 94(c) of the Rules of Procedure of the Court of Justice, the CJEU has held that the request for a preliminary ruling is inadmissible in its entirety.

Mateusz Miłek, Clarifications on the scope of the EU-Switzerland Agreement on the free movement of persons, actualité du CEJE n° 19/2023, 5 juin 2023, disponible sur www.ceje.ch