Referral C-832/24 (Satel Film, 28 Nov 2024)

(1)(a) Must the exception in subparagraph 3 of Article 3(3), ‘… except as necessary, and only for as long as necessary, in order to […]’, read in conjunction with point (a) of the third subparagraph of Article 3(3) of Regulation (EU) 2015/2120 [of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services (OJ 2015 L 310, p. 1)] (‘Regulation (EU) 2015/2120’) and recitals 11 and 13 thereof be interpreted as meaning that, where traffic management measures are taken by an Internet Service Provider (‘ISP’) in compliance with its obligations to prevent access to unlawful content or services (‘network blocks’ or ‘blocking measure’) that arise from national legislation that complies with European Union law and to which the ISP is subject, taking into account the obligations and prohibitions laid down in Article 3(1) and (3) of Regulation (EU) 2015/2120, Article 11(1) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the Court’s findings in particular in paragraphs 55, 56 and 59 of the judgment of 27 March 2014, Case C-314/12, notwithstanding the fulfilment of the exception at point (a) of the third subparagraph of Article 3(3) of Directive (EU) 2015/2120, only traffic management measures may be taken which are to be regarded as absolutely necessary, appropriate and proportionate to achieve the purpose of preventing access to (unlawful) content or services?

(1)(b) If Question (1)(a) is answered in the affirmative: Is the necessity, appropriateness and proportionality of such a blocking measure as referred to in part (a) of the first question and paragraphs 56 and 57 of the judgment of the Court of Justice of 27 March 2014, Case C-314/12, to be examined by the national regulatory authorities in the procedure pursuant to Article 5(1) of Regulation (EU) 2015/2120 or by the authorities or courts which decide on the existence of injunction claims by rightholders against ISPs as ‘intermediaries’ within the meaning of Article 8(3) of Directive 2001/29/EC (national law: Paragraph 81(1a) of the Urheberrechtsgesetz (Law on Copyright, ‘the UrhG’))?

(1)(c) If the answer to Question (1)(a) is in the affirmative: Is the necessity, appropriateness and proportionality of such a blocking measure as referred to in Question (1)(a) to be assessed solely on the basis of the parameter of the extent to which the envisaged blocking measure adversely affects the ISP’s right to freedom to conduct a business within the meaning of Article 16 of the Charter and the rights of end-users under Article 3(1) of Regulation (EU) 2015/2120 or to freedom of information within the meaning of Article 11 of the Charter, or is it also necessary to take into consideration in the light of the findings of the Court of Justice in paragraph 60 of the judgment of 27 March 2014 in Case C-314/12, how (technically) effective a certain traffic management measure is in view of the prevention of access by ISP end-users to the unlawful content/services; this, in particular in the context that all available blocking measures are ultimately capable of being circumvented with a certain technical effort (of the extent of which may vary)?

(1)(d) If Question (1)(a) is answered in the affirmative: Must Article 3(1) and the third subparagraph of Article 3(3), read in conjunction with point (a) of the third subparagraph of Article 3(3) of Regulation (EU) 2015/2120, be interpreted as meaning that, where various technically appropriate traffic management measures are available to an ISP in order to fulfil its obligations to stop access to unlawful content/services, the ISP may apply only the measure which entails the least extensive restrictions of end-users’ rights under Article 3(1) and the third subparagraph of Article 3(3) of Regulation (EU) 2015/2120 or Article 11(1) and Article 16 of the Charter, irrespective of the ease or difficulty of circumventing the blocking measure at issue for end-users from a technical point of view?

(2) Do the provisions of the Article 3(1) and the third subparagraph of Article 3(3) of Directive (EU) 2015/2120, read in conjunction with Article 11(1) and Article 52(1) of the Charter, in the light of the findings of the Court in paragraphs 55, 56 and 59 of its judgment of 27 March 2014 in Case C-314/12, preclude the use or ordering of blocking measures taken by an ISP in the spirit of Article 3(3)(a) of Regulation (EU) 2015/2120 to fulfil statutory measures or measures ordered by a court or authority to prevent access to (unlawful) content or services through the blocking of traffic to or from certain IP addresses (‘IP blocking’) which are allocated to domains from which these unlawful content or services may be retrieved where it cannot be excluded, from a technical point of view, that that measure also impedes end-users’ access to content, applications or services provided by other, uninvolved end-users under other domains because their domains were allocated to the same IP address as that under which the unlawful content or services are provided (‘IP overblocking’).