CJEU C-797/23: Freedom to conduct business and online advertising impact

Today’s CJEU judgment on press & fair compensation indirectly impacts the “Consent or Pay” & broader discussions on online advertising, through its teachings on the freedom to conduct business:

any measure liable to have a sufficiently direct and significant effect on the freedom of the operators concerned to exercise a trade or profession constitutes a limitation on the exercise of the freedom to conduct a business. Second, the protection afforded by Article 16 of the Charter also includes, by virtue of freedom of contract, the freedom to choose with whom to do business and the freedom to determine the price for a service*, and the imposition of an obligation to contract constitutes a substantial limitation on the freedom of contract enjoyed, in principle, by economic operators
[para. 86]
* “prestation” in French, so “work/service

While “that freedom may therefore be subject to a broad range of interventions on the part of public authorities which may, in the public interest, limit the exercise of economic activity” [87], the Court of Justice stresses that “any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law and respect the essence of those rights and freedoms and, subject to the principle of proportionality, must be necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others” [88].

In this specific case, “both the obligation incumbent on information society service providers to provide certain data, failing which an administrative fine may be imposed on them, and the requirement that they must not limit the visibility of press publications in the search results during the negotiations, as well as the powers conferred on AGCOM in that regard, are liable to limit the exercise of their freedom to conduct a business” [90].

The conclusion is that in this particular case, the statutory restriction is proportionate – but that might not be the case for all statutory restrictions.

And in the “Consent or Pay” debate, regulatory interpretations of the GDPR intended to restrict economic freedom don’t quite appear to meet the same conditions…

In any event, this is another important “freedom to conduct business” judgment, like Sky Österreich (C-283/11 – to which the CJEU refers extensively here too).

Judgment in case C-797/23, 12 May 2026: https://lnkd.in/e2pErcgv