Referral C-654/23 (Inteligo Media, 2 Nov 2023)

(1) In a case in which a publisher of online news publications providing information to the general public, which does not specialise in the field, regarding the legislative amendments issued each day in Romania, obtains the email address of a user when the latter creates a free user account entitling him or her: (i) to access, free of charge, an additional number of articles from the publication in question; (ii) to receive, via email, a daily newsletter containing a summary of the new legislation discussed in articles within the publication and hyperlinks to those articles; and (iii) to access, for a fee, additional and/or more extensive articles and analyses from the publication compared with those in the free daily newsletter:
(a) is that email address obtained by the publisher of the online news publication ‘in the context of the sale of a product or a service’ within the meaning of Article 13(2) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (‘Directive 2002/58/EC’)?
(b) is the transmission by the news publisher of a newsletter such as that described in the abovementioned point (ii) carried out ‘for direct marketing of its own similar products or services’ within the meaning of Article 13(2) of Directive 2002/58/EC?

(2) If the answers to Question 1(a) and (b) are in the affirmative, which of the conditions laid down in Article 6(1)(a) to (f) of Regulation (EU) 2016/679 must be interpreted as applying when the publisher uses the user’s email address for the purpose of sending a daily newsletter such as that described in Question 1(ii), in accordance with the requirements of Article 13(2) of Directive 2002/58/EC?

(3) Must Article 13(1) and (2) of Directive 2002/58/EC be interpreted as precluding national legislation which uses the concept of ‘commercial communication’ laid down in Article 2(f) of 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 (‘Directive on electronic commerce’) (‘Directive 2000/31/EC’) instead of the concept of ‘direct marketing’ laid down in Directive 2002/58/EC? If not, does a newsletter such as that described in Question 1(ii) constitute a ‘commercial communication’ within the meaning of Article 2(f) of Directive 2000/31/EC?

(4) If the answers to Question 1(a) and (b) are in the negative: (a) does the transmission via email of a daily newsletter such as that described in Question 1(ii) constitute ‘use […] of electronic mail for the purposes of direct marketing’ within the meaning of Article 13(1) of Directive 2002/58/EC?
(b) must Article 95 of Regulation (EU) 2016/679, in conjunction with Article 15(2) of Directive 2002/58/EC, be interpreted as meaning that failure to comply with the conditions for obtaining valid consent from the user pursuant to Article 13(1) of Directive 2002/58/EC will be penalised in accordance with Article 83 of Regulation (EU) 2016/679 or in accordance with the provisions of national law contained in the act transposing Directive 2002/58/EC, which contains specific penalties?

(5) Must Article 83(2) of Regulation (EU) 2016/679 be interpreted as meaning that a supervisory authority which decides whether to impose an administrative fine and decides on the amount of the administrative fine in each individual case is obliged to analyse and explain in the administrative act imposing the fine the effect of each of the criteria laid down in points (a) to (k) on the decision to impose a fine and, respectively, on the decision regarding the amount of the fine imposed?