Today, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued its long-awaited judgment in Meta, C-797/23, a referral from TAR Lazio (Italy). The case sought to determine whether Italy’s transposition of the press publishers’ right under Article 15 of the DSM Directive – in particular the role of the Communications Authority (AGCOM) – is permitted under EU law, having regard to Article 15 itself and to Articles 16 and 52 of the EU Charter.

The CJEU held that the Italian model may be compatible with EU law, while stressing two key points:

1. First, exclusive rights like those enjoyed by press publishers cannot be transformed into mere entitlements to remuneration.
2. Second, Article 15 targets information society service providers (ISSPs) that use press publications, not those that do not.

As discussed below, both points are crucial not only for how the Italian system operates (and its actual compatibility with EU law), but also for broader issues including, obviously, artificial intelligence (AI).

Let’s see in greater detail what happened.

Background

Italy transposed Article 15 by introducing a mechanism (Article 43-bis of the Italian Copyright Act) that applies where no agreement is reached between press publishers and ISSPs. In that scenario, AGCOM determines the amount of ‘fair compensation’ (equo compenso) due to press publishers for the use of their protected subject matter by ISSPs.

For further details about the history and rationale of the Italian implementation approach, see here.

Today’s decision

The Grand Chamber substantially endorsed the earlier Opinion of Advocate General (AG) Szpunar, concluding that the Italian system is not necessarily disallowed under EU law.

The Court stated that Article 15(1) constitutes a measure of full harmonization, depriving Member States of the freedom to define in a non-harmonized manner the rights enjoyed by press publishers (reproduction and making available to the public). That said, Member States retain discretion to lay down the detailed rules for implementing those rights, since the EU provision does not address them, provided that those rules are fully compatible with both the general objective of the directive and the specific objective of Article 15. The latter includes facilitating licensing by press publishers.

Against that backdrop, the Grand Chamber made two observations that are particularly important for assessing the Italian model.

First, exclusive rights (including those enjoyed by press publishers under Article 15(1)) are preventive in nature and cannot be therefore turned into remuneration rights (para 62):

Second, Article 15(1) applies only where ISSPs themselves use press publications: “it in no way guarantees them remuneration where those providers do not use or intend to use those publications.” The same conclusion applies, the Court said, to the other obligations that Italian law imposes on ISSPs, including refraining from limiting the visibility of press publications in search results during negotiations and providing the data necessary to determine the amount of ‘fair compensation’ for such use. If there is no use on their side, no such obligations may be imposed.

It is for the referring court now to comply with the Marleasing principle and determine if it is possible to interpret Italian law in such a way that the principles above can be observed.

Turning to the question whether the Italian law causes an undue compression of ISSPs’ freedom to conduct a business, the Grand Chamber held that this would not necessarily be the case.

In conclusion, the CJEU held that a transposition approach like the Italian one may be allowed by EU law insofar as (1) press publishers’ rights remain preventive in nature and are not turned into mere entitlements to remuneration and (2) ISSPs in fact use press publications.

Comment

The early comments circulating this afternoon generally summarized today’s ruling as strengthening the media sector vis-à-vis ‘BigTech’. In my view, this initial reaction may be both inappropriate and incorrect.

First question: can Italy consider its implementation approach safe? Short answer: not necessarily.

It is true that the Grand Chamber did not consider the Italian approach incompatible with EU law in itself. However, like AG Szpunar, it added nuances that would be reckless to overlook. These boil down to the aspects highlighted above: the nature of press publishers’ rights and the use of their press publications by ISSPs.

Use by ISSPs

Regarding the question whether there is use by ISSPs that display press publications posted by users, an obvious parallel to draw is that with user-uploaded content platforms and the question of their primary liability under Article 3 of the InfoSoc Directive. Despite that Article 17 of the DSM Directive was presented as a clarification of the pre-existing law in the DSM Directive itself (see also recenly AG Emiliou in Austro-Mechana and AKM [IPKat here]), we know how the CJEU reasoned and ruled in YouTube [IPKat here].

The Grand Chamber has today raised a fundamental question, which will likely translate to litigation in various Member States: do all ISSPs displaying press publications via user uploads in fact use them themselves?

Exclusive rights must stay so

Turning to the nature of rights, this is crucial not only in the context of Article 15, but more at large, including in the context of AI development. The Grand Chamber has offered a strong reminder that exclusive rights remain such. It is overall “settled case-law” that “the exclusive right to authorise or prohibit is a right preventive in nature, in that any act of exploitation of protected subject matter requires the prior consent of the holder of the right in question” (Opinion of AG Szpunar in ONB; in the same sense, more recently, VHC 2 Seniorenresidenz)

A clear consequence of this ‘reality check’ is that all those proposals that imagine AI training develop without the need for rightholders’ consent – because exclusive rights could be turned into mere entitlements to remuneration – are devoid of legal foundation.

[Originally published on The IPKat on 12 May 2026]