Opinion of the Advocate General — ECLI:EU:C:2016:170
Date: 2016-03-16
Language of the case: German
Subject matter: Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 15 September 2016 1. Approximation of laws — Electronic commerce — Directive 2000/31 — Supply of services by the information society — Concept — Service provided by a communication network operator and consisting in making that service available to the general public free of charge for the purposes of advertising goods or services supplied by that service provider — Included (European Parliament and Council Directives 98/34, Art. 1, para. 2, and 2000/31, Arts 2(a) and 12(1)) 2. Approximation of laws — Electronic commerce — Directive 2000/31 — Exemption from liability of suppliers in the event of provision of access to the communication network — Concept of supply — Sufficient to make available to the general public — Further conditions relating to the existence of a contractual relationship between the recipient and provider of the service and the use of advertising — No such conditions (European Parliament and Council Directive 2000/31, Arts 12(1) and 14(1)(b)) 3. Approximation of laws — Electronic commerce — Directive 2000/31 — Liability of intermediary service providers — Exemptions for transmission, storage and hosting activities — Other requirements with regard to a supplier of services providing access to a communication network — No such requirements (European Parliament and Council Directive 2000/31, Arts 2(b) and 12(1)) 4. Approximation of laws — Electronic commerce — Directive 2000/31 — Liability of intermediary service providers — Exemptions for transmission, storage and hosting activities — Scope — Infringement by a third party of rights of rightholders over a protected work — Not included — Right of those rightholders to claim injunctive relief against the recurrence of the infringement in the event that the national courts grants injunction relief to that effect (European Parliament and Council Directive 2000/31, Art. 12(1)) 5. Approximation of laws — Electronic commerce — Directive 2000/31 — Liability of intermediary service providers — Exemptions for transmission, storage and hosting activities — Injunction requiring a communication network access provider to prevent a third party from making available to the general public, by means of an Internet connection, a work or parts thereof protected by copyright — Lawfulness — Verification by the national court (European Parliament and Council Directives 2000/31, Arts 12(1) and (3), 2001/29 and 2004/48) 1. Article 12(1) of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market, read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48/EC, must be interpreted as meaning that a service provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider. In that regard, it follows, first, from recitals 2 and 19 of Directive 98/48, amending Directive 98/34, and second, from Article 1(2) of Directive 98/34 that the information society services referred to in Article 12(1) of Directive 2000/31 cover only those services normally provided for remuneration. Nonetheless, it does not follow that a service of an economic nature performed free of charge may under no circumstances constitute an ‘information society service’ within the meaning of Article 12(1) of Directive 2000/31. The remuneration of a service supplied by a service provider within the course of its economic activity does not require the service to be paid for by those for whom it is performed. That is the case, inter alia, where the performance of a service free of charge is provided by a service provider for the purposes of such advertising, since the cost of that activity is incorporated into the price of those goods or services. (see paras 37-39, 41-43, operative part 1) 2. Article 12(1) of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market, must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied. 3. It is clear, first, from the wording of that article that the provision of the service must involve the transmission in a communication network of information and, second, from recital 42 of that directive, that the activity of ‘mere conduit’ is of a mere technical, automatic and passive nature. Moreover, it does not appear either from the other provisions of Directive 2000/31 or the objectives pursued thereunder that providing access to a communication network must satisfy further conditions, such as a condition that there be a contractual relationship between the recipient and provider of that service or that the service provider use advertising to promote that service. 4. Finally, that provision must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply by analogy to Article 12(1). The exemptions from liability provided for in those provisions are governed by different conditions of application depending on the type of activity concerned. In particular, Article 14(1) of Directive 2000/31 provides, inter alia, that, in order to benefit from the exemption from liability, internet website hosts must act expeditiously upon obtaining knowledge of illegal information to remove or to disable access to it, whereas, in contrast, Article 12(1) of that directive does not subject the exemption from liability that it lays down in favour of providers of access to a communication network to compliance with such a condition. (see paras 46-48, 50, 54, 57-59, 64, 65, operative part 2, 3) 5. The first half-sentence of Article 12(1) of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are no conditions, other than the one mentioned in that provision, to which a service provider supplying access to a communication network is subject. (see para. 71, operative part 4) 6. Article 12(1) of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market, must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that, considered separately, it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue. (see para. 79, operative part 5) 7. Article 12(1) of Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the internal market, read in conjunction with Article 12(3) of that directive, must be interpreted, having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society, and 2004/48 on the enforcement of intellectual property rights, as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyright-protected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain. In that regard, in so far as such an injunction, first, places a burden on the access provider capable of affecting his economic activity and, second, is capable of restricting the freedom available to recipients of such a service from benefiting from access to the internet, the injunction infringes the former’s right of freedom to conduct a business, protected under Article 16 of the Charter of Fundamental Rights of the European Union, and the right of others to freedom of information, the protection of which is provided for by Article 11 of the Charter. Where several fundamental rights protected under EU law are at stake, it is for the national authorities or courts concerned to ensure that a fair balance is struck between those rights. In a situation in which there are, in practice, only three measures that the addressee of the injunction may take, namely examining all communications passing through an internet connection, terminating that connection or password-protecting it, first, monitoring all of the information transmitted, must be excluded from the outset as contrary to Article 15(1) of Directive 2000/31, which excludes the imposition of a general obligation on, inter alia, communication network access providers to monitor the information that they transmit. As regards, second, the measure consisting in terminating the internet connection completely, so doing would cause a serious infringement of the freedom to conduct a business of a person who pursues an economic activity, albeit of a secondary nature, consisting in providing internet access in order to remedy a limited infringement of copyright, because it categorically prevents that provider from pursing the activity in practice, without considering the adoption of measures less restrictive of that freedom. In those circumstances, such a measure cannot be regarded as complying with the requirements of ensuring a fair balance is struck between the fundamental rights which must be reconciled. As regards, third, the measure consisting in password-protecting an internet connection, such a measure is capable of restricting both the freedom to conduct a business of the provider supplying the service of access to a communication network and the right to freedom of information of the recipients of that service, in the first place, such a measure does not damage the essence of the right to freedom to conduct its business of a communication network access provider in so far as the measure is limited to marginally adjusting one of the technical options open to the provider in exercising its activity. In the second place, a measure consisting in securing an internet connection does not appear to be such as to undermine the essence of the right to freedom of information of the recipients of an internet network access service, in so far as it is limited to requiring such recipients to request a password, it being clear furthermore that that connection constitutes only one of several means of accessing the internet. In the third place, although the measures adopted by the recipient of an injunction must be strictly targeted, however, a measure adopted by a communication network access provider consisting in securing the connection to a network does not, however, appear to be capable of affecting the possibility made available to internet users using the services of that provider to access information lawfully, in so far as the measure does not block any internet site. In the fourth place, measures which are taken by the addressee of an injunction when complying with that injunction must be sufficiently effective to ensure genuine protection of the fundamental right at issue, that is to say that they must have the effect of preventing unauthorised access to the protected subject matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject matter made available to them in breach of that fundamental right. A measure consisting in password-protecting an internet connection may dissuade the users of that connection from infringing copyright or related rights, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain. In the absence of other measures envisaged by the referring court which are able to comply with EU law, to consider that a communication network access provider need not secure its internet connection would thus be to deprive the fundamental right to intellectual property of any protection, which would be contrary to the idea of a fair balance. In those circumstances, a measure intended to secure an internet connection by means of a password must be considered to be necessary in order to ensure the effective protection of the fundamental right to protection of intellectual property. It follows that a measure consisting in securing a connection must be considered to be capable of striking a fair balance between, first, the fundamental right to protection of intellectual property and, second, the right to freedom to conduct the business of a provider supplying the service of access to a communication network and the right to freedom of information of the recipients of that service. (see paras 82, 83, 85, 87-101, operative part 6)