Mc Fadden case (C-484/14): the preliminary questions finally published on the CJEU website

A little over a month ago, in an article entitled ‘ Is a trader who provides his customers with a wireless internet connection a “simple carrier” within the meaning of Directive 2000/31? ‘, I was telling you about the case and its potentially interesting implications. The (numerous) preliminary questions put to the Court of Justice of the European Union in this case were finally published on the Court’s website.

I reproduce them below for your attention, they are so worthy of interest.

First Question:

Article 12 (1), first half of sentence, 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, and in particular of commerce electronics, in the internal market ( ‘Directive on electronic commerce’), in conjunction with Article 2, a) [ Translator’s note : it is undoubtedly appropriate to read “under b)”], 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, and in particular of electronic commerce, in the internal market (“Directive on electronic commerce”) and with Article 1 (2) of Directive 98/34 / EC, as amended by Directive 98/48 / EC, should it be interpreted as meaning that the expression “normally against remuneration” means that the national court must determine

At. If the specific data subject, who avails himself of the quality of service provider, normally provides this specific service for remuneration,

Or B. whether there are providers on the market who provide this or similar services for a fee,

Or Vs. whether the majority of these or similar services are provided for remuneration?

Second question:

Article 12 (1), first half sentence, 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, and in particular of commerce electronic, in the internal market (“Directive on electronic commerce”) should be interpreted as meaning that the expression “to provide access to the communication network” means that, in order for a supply to comply with the Directive, it matters only that there is a result that access to a communication network (egg Internet) is provided?

Third question:

Article 12 (1), first half of sentence, 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, and in particular of commerce electronic, in the internal market (“Directive on electronic commerce”), read in conjunction with Article 2 (b) of Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 relating to certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce”), should be interpreted as meaning that in order to “provide” within the meaning of Article 2 (b),Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce “) It suffices that the information society service is actually made available, in this case an open WLAN is made available, or, for example, is an” advertisement “additionally also necessary ?

Fourth question:

Article 12 (1), first half of sentence, 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, and in particular of commerce electronic, in the internal market (“Directive on electronic commerce”) should be interpreted as meaning that the expression “not responsible for the information transmitted” means that are in principle excluded, on the part of the data subject due to infringement of copyright, any rights to seek prohibition, compensation, payment of formal notice costs and legal costs against the access provider, or that they are excluded in any event in connection with the first established copyright infringement?

Fifth question:

Article 12 (1), first half of the sentence, read in conjunction with Article 12 (3) of Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of services of the information society, and in particular of electronic commerce, in the internal market (“Directive on electronic commerce”), should this be interpreted as meaning that the Member States cannot authorize the national court, in a main proceedings, to order access providers to refrain in future from allowing third parties to make available, via a specific Internet connection, a specific work protected by copyright on a stock exchange. Internet exchanges for an online consultation?

Sixth question:

Article 12 (1), first half of sentence, 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, and in particular of commerce electronic, in the internal market (‘Directive on electronic commerce’) must be interpreted as meaning that, in the circumstances of the main proceedings, the rule provided for in Article 14 (1) (b), of Directive 2000/31 / EC must be applied by analogy to a right to obtain the ban?

Seventh question:

Article 12 (1), first half of sentence, 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, and in particular of commerce electronic, in the internal market (“Directive on electronic commerce”), read in conjunction with Article 2 (b) of Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 relating to certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce”), should this be interpreted as meaning that the requirements imposed on a service provider are limited to fact that the service provider is any natural or legal person providing an information society service?

Eighth question:

If question 7 is answered in the negative, what additional requirements must be placed on a service provider in the context of the interpretation of Article 2 (b) of Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 relating to certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“directive on electronic commerce”)?

Ninth question:

A) Article 12 (1), first half of sentence, 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, and in particular of commerce electronic commerce, in the internal market (“Directive on electronic commerce”), taking into account the protection of intellectual property guaranteed by fundamental rights and deriving from the right to property (Article 17 (2) of the Charter of Fundamental Rights of European Union), also taking into account the rules provided for in the following directives on the protection of intellectual property, above all copyright:

– Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society,

– Directive 2004/48 / EC of the European Parliament and of the Council of April 29, 2004 on respect for intellectual property rights

and taking into account the freedom of information and the freedom to conduct a business guaranteed by the fundamental rights of the Union (Article 16 of the Charter of Fundamental Rights of the European Union),

should it be interpreted as meaning that it does not preclude a decision adopted by a national court in a case in the main proceedings which condemns the access provider, under penalty of a fine, to refrain from the future of allowing third parties to make available, via a concrete Internet connection, a particular work, or parts thereof, protected by copyright on an Internet exchange for online consultation, and so that the access provider thus has the choice of the technical measures that he will adopt in practice to comply with this injunction?

b) Does this also apply if the ISP can in practice only comply with the judicial prohibition by shutting down the Internet connection, or securing it with a password, or by examining all communications transmitted via this connection for the purpose of verifying whether the relevant work protected by copyright is not illegally transmitted again, when this is already established from the outset and does not appear only in the context of the procedure for forced execution or sanction?

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