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Italian court upholds €3.7 million viagogo fine for ticket touting, rules it is not a 'passive hosting provider'

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An Italian court has rejected an appeal from viagogo against a €3,700,000 fine for hosting tickets sold in contravention of Italian law.  The judgment, which was handed down by the Regional Administrative Court of Lazio earlier this month, upholds a 2020 ruling brought by Italian Communications Regulatory Authority AGCOM sanctioning viagogo for listing tickets to 37 events at above face value between March and July 2019.

Italy’s 2017 Budget law states that tickets for entertainment events must only be sold by authorised ticket providers in Italy. However, consumers are permitted to sell unwanted tickets for a price equal to or less than the ticket’s face value.

The judges rejected viagogo’s argument that it was acting as a “passive hosting provider” by merely connecting resellers with potential buyers, which would exempt the resale platform from liability under Italian law implementing the E-Commerce Directive. Instead, viagogo was found to provide a range of services and promote and advertise tickets in a way that could not be considered to be carried out without any awareness or control on its part.

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The Court pointed out that: "The service provided by the viagogo… clearly does not have the characteristics of passive hosting, given that it clearly does not consist in the mere "storage of information", but rather in the articulated activities of optimisation and advertising promotion of the titles on sale…. Nor has the appellant in any way substantiated the claim that such complex activities would be carried out by the platform in a completely automatic manner and without any awareness and/or possibility of control on its part".

In a final dig, the court added that even if viagogo had qualified as a “passive hosting provider,” it would still not have benefited from the liability exemption afforded by the law as it did not act quickly to remove or disable access to the listings once notified by the competent authorities.

This important ruling is another step towards greater accountability of secondary ticketing platforms, which routinely profit from illegal ticket sales. It builds on consistent rulings against liability exemption as a passive hosting provider – from both the Italian Supreme Court (n. 7708 March 19, 2019. Mediaset vs Yahoo!) and European Court (C-324/09, L'Orèal v. eBay and C-236/08, Google v. Louis Vuitton).  It comes as European legislators look at tightening the rules around platform liability, with particular regard to marketplaces — including the likes of viagogo.

FEAT Director Sam Shemtob said: “Uncapped secondary marketplaces such as viagogo have long been shielding under the liability exemption offered by EU law by claiming to have little to no knowledge of the activity taking place on their sites. It is time that they’re held responsible for the illegal activity they promote and profit from, both in Italy and across Europe”.

Italy

Italy arrests 18 for illegal fishing of protected shellfish

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A general view of underwater damaged rocks after scuba divers used hammers to illegally harvest date mussels at Tyrrhenian Sea as seen in this screengrab taken from a video released on July 28, 2021. Italian Coast Guard/Handout via REUTERS
A view of the Faraglioni giant rocks off the coast of Capri, where the surrounding seabed has been devastated by illegal fishing of valuable shellfish known as date mussels, in Capri, Italy, April 28, 2021. REUTERS/Yara Nardi/File Photo

The Italian coastguard arrested 18 people on Wednesday (28 July) for illegal fishing of a rare mollusc, breaking up what police said was a criminal organisation that had been destroying a stretch of protected coastline south of Naples, writes Gavin Jones, Reuters.

The arrests followed a three-year investigation into the group which had allegedly been harvesting date mussels, a protected species, using hammers to get them out of the rocks near the seaside beauty spot of Sorrento.

Fishing for date mussels has been illegal in Italy since 1998, because they are an endangered species and the invasive methods used to get them out of the rocks they bore into are destructive for the marine ecosystem.

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The valuable shellfish, considered a delicacy, are longer than common mussels and have a browner shell. They sell at up to 200 euros ($235) per kilo on the black market.

The people arrested are accused of numerous crimes including illegal fishing, destroying the marine habitat and selling unsafe foods, said a statement from the prosecutors' office of Torre Annunziata which led the investigation.

The "criminal organisation," which had allegedly operated since 2016, was also responsible for collecting and selling clams from a "highly polluted" area near the mouth of a river carrying hydrocarbons and heavy metals, the statement said.

Less than three months ago on the nearby island of Capri, a glamorous tourist destination, police broke up two other organisations for date mussel fishing. read more

A police video showed the holes in the three "Faraglioni" rock formations, a symbol of Capri, caused by the drills and hammers the fishermen had used to extract the molluscs.

($1 = €0.8471)

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coronavirus

COVID-19 crisis has led to food crisis, says Italy's Draghi

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Italian Prime Minister Mario Draghi arrives for the virtual G20 summit on the global health crisis, at Villa Pamphilj in Rome, Italy, May 21, 2021. REUTERS/Yara Nardi

The world must ensure access to food supplies as forcefully as it moved to ensure access to vaccines, Italian Prime Minister Mario Draghi said at the opening of the United Nations Food Systems Pre-Summit in Rome, writes Maytaal Angel.

"The health crisis (COVID-19) has led to a food crisis," he said, citing data showing malnutrition in all its forms has become the leading cause of ill health and death in the world.

The U.N.'s first ever Food Systems Summit will take place in September, with the aim of delivering progress on the body's 2030 sustainable development goals (SDGs).

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According to the latest U.N. data, the world's food system, which involves cutting down forests to plant crops, is responsible for a third of global greenhouse gas emissions, making it a leading cause of climate change.

"We are off track to achieve the SDGs," said U.N. Secretary General António Guterres, who first announced his plan to convene the Food Systems Summit in October 2019, before COVID-19 dramatically slowed progress towards SDGs like zero hunger.

After remaining virtually unchanged for five years, world hunger and malnutrition rose last year by around 118 million people to 768 million, with most of the increase likely due to the COVID-19 pandemic, according to a major U.N. report. Read more.

On internationally traded markets, world food prices were up 33.9% year-on-year in June, according to the U.N food agency's price index, which measures a basket of cereals, oilseeds, dairy products, meat and sugar. Read more.

There is increased diplomatic momentum to tackle hunger, malnutrition and the climate crisis this year with summits like the current one, but the challenge is huge.

Guterres said the pre-summit will assess progress towards achieving the SDGs by transforming global food systems, which, he noted, are also responsible for 80% of the world's biodiversity loss.Reporting by Maytaal Angel

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Aviation/airlines

Commission approves €800 million Italian scheme to compensate airports and ground-handling operators for the damage suffered due to the coronavirus outbreak

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The European Commission has approved, under EU state aid rules, an €800 million Italian scheme to compensate airports and ground-handling operators for the damage suffered due to the coronavirus outbreak and the travel restrictions that Italy and other countries had to implement to limit the spread of the virus.

Executive Vice President Margrethe Vestager in charge of competition policy said: "Airports are among the companies that have been hit particularly hard by the coronavirus outbreak. This €800 million scheme will enable Italy to compensate them for the damage suffered as a direct result of the travel restrictions that Italy and other countries had to implement to limit the spread of the virus. We continue working in close cooperation with member states to find workable solutions to mitigate the economic impact of the coronavirus outbreak, in line with EU rules.”

The Italian scheme

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Italy notified to the Commission an aid measure to compensate airports and ground-handling operators for the damage suffered during the period between 1 March and 14 July 2020 due to the coronavirus outbreak and the travel restrictions in place.

Under the scheme, the aid will take the form of direct grants. The measure will be open to all airports and ground-handling operators with a valid operating certificate delivered by the Italian civil aviation authority.

A claw-back mechanism will ensure that any public support received by the beneficiaries in excess to the actual damage suffered will have to be paid back to the Italian State.  

The Commission assessed the measure under Article 107(2)(b) of the Treaty on the Functioning of the European Union (TFEU), which enables the Commission to approve State aid measures granted by member states to compensate specific companies or specific sectors for the damages directly caused by exceptional occurrences, such as the coronavirus outbreak.

The Commission considers that the coronavirus outbreak qualifies as an exceptional occurrence, as it is an extraordinary, unforeseeable event having a significant economic impact. As a result, exceptional interventions by the member states to compensate for the damages linked to the outbreak are justified. 

The Commission found that the Italian measure will compensate damages that are directly linked to the coronavirus outbreak, and that it is proportionate, as the compensation will not exceed what is necessary to make good the damage, in line with Article 107(2)(b) TFEU.

On this basis, the Commission approved the measure under EU state aid rules.

Background

Financial support from EU or national funds granted to health services or other public services to tackle the coronavirus situation falls outside the scope of State aid control. The same applies to any public financial support given directly to citizens. Similarly, public support measures that are available to all companies such as for example wage subsidies and suspension of payments of corporate and value added taxes or social contributions do not fall under State aid control and do not require the Commission's approval under EU State aid rules. In all these cases, member states can act immediately.

When State aid rules are applicable, member states can design ample aid measures to support specific companies or sectors suffering from the consequences of the coronavirus outbreak in line with the existing EU State aid framework.

On 13 March 2020, the Commission adopted a Communication on a co-ordinated economic response to the COVID-19 outbreak setting out these possibilities.

In this respect, for example:

  • Member states can compensate specific companies or specific sectors (in the form of schemes) for the damage suffered due and directly caused by exceptional occurrences, such as those caused by the coronavirus outbreak. This is foreseen by Article 107(2)(b)TFEU.
  • State aid rules based on Article 107(3)(c) TFEU enable member states to help companies cope with liquidity shortages and needing urgent rescue aid.
  • This can be complemented by a variety of additional measures, such as under the de minimis Regulation and the General Block Exemption Regulation, which can also be put in place by Member States immediately, without involvement of the Commission.

In case of particularly severe economic situations, such as the one currently faced by all member states due the coronavirus outbreak, EU State aid rules allow member states to grant support to remedy a serious disturbance to their economy. This is foreseen by Article 107(3)(b) TFEU of the Treaty on the Functioning of the European Union.

On 19 March 2020, the Commission adopted a State Aid Temporary Framework based on Article 107(3)(b) TFEU to enable Member States to use the full flexibility foreseen under State aid rules to support the economy in the context of the coronavirus outbreak. The Temporary Framework, as amended on 3 April, 8 May, 29 June, 13 October 2020 and 28 January 2021, provides for the following types of aid, which can be granted by member states: (i) Direct grants, equity injections, selective tax advantages and advance payments; (ii) State guarantees for loans taken by companies; (iii) Subsidised public loans to companies, including subordinated loans; (iv) Safeguards for banks that channel State aid to the real economy; (v) Public short-term export credit insurance;(vi) Support for coronavirus related research and development (R&D); (vii) Support for the construction and upscaling of testing facilities; (viii) Support for the production of products relevant to tackle the coronavirus outbreak; (ix) Targeted support in the form of deferral of tax payments and/or suspensions of social security contributions; (x) Targeted support in the form of wage subsidies for employees; (xi) Targeted support in the form of equity and/or hybrid capital instruments; (xii) Support for uncovered fixed costs for companies facing a decline in turnover in the context of the coronavirus outbreak.

The Temporary Framework will be in place until the end of December 2021. With a view to ensuring legal certainty, the Commission will assess before this date if it needs to be extended.

The non-confidential version of the decision will be made available under the case number SA.63074 in the state aid register on the Commission's competition website once any confidentiality issues have been resolved. New publications of State aid decisions on the internet and in the Official Journal are listed in the Competition Weekly e-News.

More information on the Temporary Framework and other action the Commission has taken to address the economic impact of the coronavirus pandemic can be found here.

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