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ECLI:EU:C:2016:689
JUDGMENT OF THE COURT (Third Chamber)
15 September 2016 (*)
(Reference for a preliminary ruling — Information society — Free movement of services — Commercial wireless
local area network (WLAN) — Made available to the general public free of charge — Liability of intermediary service
providers — Mere conduit — Directive 2000/31/EC — Article 12 — Limitation of liability — Unknown user of the
network — Infringement of rights of rightholders over a protected work — Duty to secure the network — Tortious
liability of the trader)
In Case C‑484/14,
REQUEST for a preliminary ruling under Article 267 TFEU from the Landgericht München I (Regional Court, Munich
I, Germany), made by decision of 18 September 2014, received at the Court on 3 November 2014, in the
proceedings
Tobias Mc Fadden
v
Sony Music Entertainment Germany GmbH,
THE COURT (Third Chamber),
composed of L. Bay Larsen, President of the Chamber, D. Šváby, J. Malenovský (Rapporteur), M. Safjan and
M. Vilaras, Judges,
Advocate General: M. Szpunar,
Registrar: V. Tourrès, Administrator,
having regard to the written procedure and further to the hearing on 9 December 2015,
after considering the observations submitted on behalf of:
Mr Mc Fadden, by A. Hufschmid and C. Fritz, Rechtsanwälte,
Sony Music Entertainment Germany GmbH, by B. Frommer, R. Bisle, M. Hügel, Rechtsanwälte,
the Polish Government, by B. Majczyna, acting as Agent,
the European Commission, by K.-P. Wojcik and F. Wilman, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 16 March 2016,
gives the following
Judgment
This request for a preliminary ruling concerns the interpretation of Article 12(1) 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’) (OJ 2000 L 178, p. 1).
The request has been made in proceedings between Mr Tobias Mc Fadden and Sony Music Entertainment Germany
GmbH (‘Sony Music’) concerning the potential liability of Mr Mc Fadden for the use by a third party of the wireless
local area network (WLAN) operated by Mr Mc Fadden in order to make a phonogram produced by Sony Music
available to the general public without authorisation.
Legal context
EU law
Directive 98/34
On 22 June 1998, the European Parliament and the Council adopted Directive 98/34/EC laying down a procedure
for the provision of information in the field of technical standards and regulations and of rules on information
society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the
Council of 20 July 1998 (OJ 1998 L 217, p. 18, ‘Directive 98/34’).
Recitals 2 and 19 of Directive 98/48 state:
Whereas a wide variety of services within the meaning of Articles 59 and 60 [TEC, now Articles 46 and 57 TFEU,]
will benefit by the opportunities afforded by the Information Society of being provided at a distance, electronically
and at the individual request of a recipient of services;
Whereas, under Article 60 [EC, now Article 57 TFEU,] as interpreted by the case-law of the Court of Justice,
“services” means those normally provided for remuneration; whereas that characteristic is absent in the case of
activities which a State carries out without economic consideration in the context of its duties in particular in the
social, cultural, educational and judicial fields …’
Article 1 of Directive 98/34 provides:
‘For the purposes of this Directive, the following meanings shall apply:
“service”, any Information Society service, that is to say, any service normally provided for remuneration, at a
distance, by electronic means and at the individual request of a recipient of services.
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