03/02/2020 CURIA - Documents The seventh and eighth questions By its seventh and eighth questions, which it is appropriate to consider together and in the fourth place, the referring court asks, in essence, whether Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are conditions other than the one mentioned in that provision to which a service provider providing access to a communication network is subject. In that regard, Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, expressly provides for only one condition as regards such a service provider, namely that of being a natural or legal person providing an information society service. In that regard, it appears from recital 41 to Directive 2000/31 that, by adopting that directive, the EU legislature struck a balance between the various interests at stake. It follows that that directive as a whole, and in particular Article 12(1) read in conjunction with Article 2(b) thereof must be regarded as giving effect to the balance struck by the legislature. In those circumstances, it is not for the Court to take the place of the EU legislature by subjecting the application of that provision to conditions which the legislature has not laid down. To subject the exemption laid down in Article 12(1) of Directive 2000/31 to compliance with conditions that the EU legislature has not expressly envisaged could call that balance into question. In the light of the foregoing, the answer to the seventh and eighth questions is that Article 12(1) of Directive 2000/31, 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. The fourth question By its fourth question, which it is appropriate to consider in the fifth place, the referring court asks, in essence, whether Article 12(1) of Directive 2000/31 must be interpreted as meaning that it does not preclude a person harmed by the infringement of its rights over a work from claiming injunctive relief against the recurrence of that infringement, compensation and the payment of costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement. In that regard, it should be noted that Article 12(1) of Directive 2000/31 states that the Member States must ensure that service providers supplying access to a communication network are not held liable for information transmitted to them by the recipients of that service on the threefold condition laid down in that provision that such providers do not initiate such a transmission, that they do not select the receiver of that transmission and that they do not select or modify the information contained in the transmission. It follows that, where those conditions are satisfied, a service provider supplying access to a communication network may not be held liable and therefore a copyright holder is, in any event, precluded from claiming compensation from that service provider on the ground that the connection to that network was used by third parties to infringe its rights. As a result, a copyright holder is also, in any event, precluded from claiming the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. In order to be well founded, such an ancilliary claim requires that the principal claim is also well founded, which is precluded by Article 12(1) of Directive 2000/31. Nevertheless, Article 12(3) of Directive 2000/31 states that that article is not to affect the possibility, for a national court or administrative authority, of requiring a service provider to terminate or prevent an infringement of copyright. Thus, where an infringement is perpetrated by a third party by means of an internet connection which was made available to him by a communication network access provider, Article 12(1) of the directive does not preclude the person harmed by that infringement from seeking before a national authority or court to have the service provider prevented from allowing that infringement to continue. Consequently, the Court considers that, taken in isolation, Article 12(1) of Directive 2000/31 does not prevent that same person from claiming the reimbursement of the costs of giving formal notice and court costs incurred in a claim such as that outlined in the preceding paragraphs. In the light of the foregoing, the answer to the fourth question is that Article 12(1) of Directive 2000/31 must be interpreted as precluding a person harmed by the infringement of its rights over a work from claiming compensation from a provider of access to a communication network on the ground that such access 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 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. The fifth, sixth and seventh questions By its fifth, ninth and tenth questions, which it is appropriate to consider together and in the sixth place, the referring court asks, in essence, whether, having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article 12(1) of Directive 2000/31, read in conjunction with Article 12(3) of that directive, must be interpreted as 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 available in that network, where, although that provider may determine which technical measures to take in order to comply with the injunction, it has already curia.europa.eu/juris/document/document.jsf?docid=183363&doclang=EN&mode=lst&occ=first 7/10