03/02/2020 CURIA - Documents mutatis mutandis to an application for a prohibitory injunction? Is the first half-sentence of Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive to be interpreted as meaning that the requirements applicable to a service provider are limited to the condition that the service provider be any natural or legal person providing an Information Society service? If the seventh question is answered in the negative, what additional requirements must be imposed on a service provider for the purposes of interpreting Article 2(b) of Directive 2000/31? Is the first half-sentence of Article 12(1) of Directive 2000/31, taking into account the existing protection of intellectual property as a fundamental right forming part of the right to property (Article 17(2) of the Charter of Fundamental Rights of the European Union) and the provisions of Directives 2001/29 and 2004/48, and taking into account the freedom of information and the fundamental right under EU law of the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights of the European Union), to be interpreted as not precluding a national court from deciding, in … proceedings in which an access provider is ordered, on pain of payment of a fine, to refrain in the future from enabling third parties to make a particular copyright-protected work or parts thereof available for electronic retrieval from an online (peer-to-peer) exchange platform via a specific internet connection, that it may be left to the access provider to determine what specific technical measures to take in order to comply with that order? Does this also apply where the access provider is in fact able to comply with the court prohibition only by terminating or password-protecting the internet connection or examining all communications passing through it in order to ascertain whether the particular copyright-protected work is unlawfully transmitted again, and this fact is apparent from the outset rather than coming to light only in the course of enforcement or penalty proceedings?’ Consideration of the questions referred The first question It appears from the order for reference that, by its first question, the referring court seeks to determine whether a service, such as that provided by the applicant in the main proceedings, consisting in making available to the general public an open wireless communication network free of charge may fall within the scope of Article 12(1) of Directive 2000/31. In those circumstances, it must be understood that, by its first question, the referring court is asking, in essence, whether Article 12(1) of Directive 2000/31, read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34, must be interpreted as meaning that a service, such as that at issue in the main proceedings, 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. From the outset, it is important to note that neither Article 12(1) of Directive 2000/31 nor Article 2 of that directive defines the concept of an ‘information society service’. However, the latter article refers for such purposes to Directive 98/34. In that regard, it follows, first, from recitals 2 and 19 to Directive 98/48 that the concept of a ‘service’ used in Directive 98/34 must be understood as having the same meaning as that used in Article 57 TFEU. Under Article 57 TFEU, ‘services’ are to be considered to be services normally provided for remuneration. Second, Article 1(2) of Directive 98/34 provides that the concept of an ‘information society service’ covers any service normally provided for remuneration, by electronic means and at the individual request of a recipient of services. Under those conditions, the Court finds that the information society services referred to in Article 12(1) of Directive 2000/31 cover only those services normally provided for remuneration. That conclusion is borne out by recital 18 of Directive 2000/31 which states that, although information society services are not solely restricted to services giving rise to online contracting but extend to other services, those services must represent an economic activity. 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 (see, to that effect, judgment of 11 September 2014, Papasavvas, C‑291/13, EU:C:2014:2209, paragraphs 28 and 29). 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 advertising the goods sold and services provided by that service provider, since the cost of that activity is incorporated into the price of those goods or services (judgment of 26 April 1988, Bond van Adverteerders and Others, 352/85, EU:C:1988:196, paragraph 16, and of 11 April 2000, Deliège, C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 56). In the light of the foregoing, the answer to the first question referred is that Article 12(1) of Directive 2000/31, read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34, must be interpreted as meaning that a service such as that at issue in the main proceedings, 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. The second and third questions By its second and third questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 12(1) of Directive 2000/31 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 only be made available or whether further conditions must be satisfied. curia.europa.eu/juris/document/document.jsf?docid=183363&doclang=EN&mode=lst&occ=first 5/10