Italian 2021 Budget Law: new electronic communications regulatory requirements for search engines and online intermediaries

By Federico Marini Balestra

01-2021

With the new Law n. 178/2020 (“2021 Budget Law”), online intermediation services and online search engines offering services in Italy, even if not established on Italian territory, have been given two new obligations. 

Paragraphs 515 – 517 of Article 1 of the 2021 Budget Law introduce new legislative provisions amending Law n. 249/1997, instituting the Communications Guarantee Authority (AGCOM), tasked with the double role of guaranteeing the respect of operators’ fair competition in the market on one side and protecting users’ interests on the other side. 

In particular, online intermediation services and online search engines will need to comply with the following obligations:

  • Subscription to the Register of Communications Operator (known as “ROC” in Italian)
  • Payment of an annual contribution fee to the AGCOM 

These measures are part of a framework for wider regulatory reform, initiated by the European legislator with the introduction of Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services. This Regulation, also known as P2B Regulation, represents the first-ever set of rules aimed at promoting fairer and more transparent conditions for online intermediation services and at avoiding their engagement in unfair commercial practices causing economic harm to the businesses that rely on them. 

Italian 2021 Budget Law entrusts AGCOM with the role of ensuring the proper and effective application of this Regulation, including the possibility for the Authority to adopt guidelines and to promote the adoption of codes of conduct. 

These additional tasks entrusted to the Authority are linked to the new obligations to contribute to the covering of administrative expenses incurred by AGCOM in the performance of its institutional functions.

For 2021, the first year of application, the contribution has been calculated on the basis of an amount  equal to 1.5 per thousand of the revenue relating to the production value, and carried out in the Italian national territory, even if they appear in the accounts of companies established abroad. For the following years, however, the Budget Law contemplates the possibility for AGCOM to modify this tax base, in compliance with the maximum limit of 2 per thousand of the above revenues.

The possible violation of the obligations contained in Regulation 2019/1150 will also be sanctioned by the AGCOM, considering the new provisions contained in the 2021 Budget Law. This does not preclude the jurisdiction of the Italian Antitrust Authority (“AGCM”) to sanction any unfair commercial practices in breach of the Italian Consumer Code.

The new Budget Law officially entered into force on 1 January 2021, but in the following weeks we expect the AGCOM to adopt interpretative clarifications on the application of the new obligations.