03/02/2020 CURIA - Documents conditions to which entitlement to the exemption from liability is subject under points (a) and (b) of Article 14(1) of Directive 2000/31 (see, by analogy, Google France and Google, paragraph 120). In situations in which that provider has confined itself to a merely technical and automatic processing of data and in which, as a consequence, the rule stated in Article 14(1) of Directive 2000/31 applies to it, it may none the less only be exempt, under paragraph 1, from any liability for unlawful data that it has stored on condition that it has not had ‘actual knowledge of illegal activity or information’ and, as regards claims for damages, has not been ‘aware of facts or circumstances from which the illegal activity or information is apparent’ or that, having obtained such knowledge or awareness, it has acted expeditiously to remove, or disable access to, the information. As the case in the main proceedings may result in an order to pay damages, it is for the referring court to consider whether eBay has, in relation to the offers for sale at issue and to the extent that the latter have infringed L’Oréal’s trade marks, been ‘aware of facts or circumstances from which the illegal activity or information is apparent’. In the last-mentioned respect, it is sufficient, in order for the provider of an information society service to be denied entitlement to the exemption from liability provided for in Article 14 of Directive 2000/31, for it to have been aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted in accordance with Article 14(1)(b) of Directive 2000/31. Moreover, if the rules set out in Article 14(1)(a) of Directive 2000/31 are not to be rendered redundant, they must be interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances. The situations thus covered include, in particular, that in which the operator of an online marketplace uncovers, as the result of an investigation undertaken on its own initiative, an illegal activity or illegal information, as well as a situation in which the operator is notified of the existence of such an activity or such information. In the second case, although such a notification admittedly cannot automatically preclude the exemption from liability provided for in Article 14 of Directive 2000/31, given that notifications of allegedly illegal activities or information may turn out to be insufficiently precise or inadequately substantiated, the fact remains that such notification represents, as a general rule, a factor of which the national court must take account when determining, in the light of the information so transmitted to the operator, whether the latter was actually aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality. In view of the foregoing, the answer to the ninth question is that Article 14(1) of Directive 2000/31 must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored. The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31. E – The tenth question relating to injunctions against the operator of the online marketplace By its tenth question, the referring court asks, in essence, whether Article 11 of Directive 2004/48 requires the Member States to afford proprietors of intellectual property rights the right to obtain against the operator of a website, such as the operator of an online marketplace by means of which their rights have been infringed, injunctions requiring the operator to take measures to prevent future infringements of those rights, and, if so, what those measures might be. eBay submits that an injunction within the meaning of Article 11 of Directive 2004/48 may relate only to specific and clearly identified infringements of an intellectual property right. L’Oréal, the United Kingdom Government, the French, Italian, Polish and Portuguese Governments and the Commission argue that the injunctions covered by that directive may also deal with the prevention of future infringements, provided that certain limits are observed. As it results from the order for reference, the question referred concerns, in particular, the third sentence of Article 11 of Directive 2004/48, according to which the Member States must ensure ‘that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right …’. It involves determining whether that provision requires the Member States to ensure that the operator of an online marketplace may, regardless of any liability of its own in relation to the facts at issue, be ordered to take, in addition to measures aimed at bringing to an end infringements of intellectual property rights brought about by users of its services, measures aimed at preventing further infringements of that kind. 1. The obligation of the Member States to ensure that their courts have jurisdiction to order online service providers to take measures to prevent future infringements of intellectual property For the purpose of determining whether the injunctions referred to in the third sentence of Article 11 of Directive 2004/48 also have as their object the prevention of further infringements, it should first be stated that the use of the word ‘injunction’ in the third sentence of Article 11 differs considerably from the use, in the first sentence thereof, of the words ‘injunction aimed at prohibiting the continuation of the infringement’, the latter describing injunctions which may be obtained against infringers of an intellectual property right. As the Polish Government in particular observed, that difference can be explained by the fact that an injunction against an infringer entails, logically, preventing that person from continuing the infringement, whilst the situation of the service provider by means of which the infringement is committed is more complex and lends itself to other kinds of injunctions. For that reason, an ‘injunction’ as referred to in the third sentence of Article 11 of Directive 2004/48 cannot be equated with an ‘injunction aimed at prohibiting the continuation of the infringement’ as referred to in the first curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1392992 12/15