The Court of Appeal decided, before examining the technical feasibility of filtering measures, to seek a preliminary ruling from the Court of Justice of the European Union regarding whether a requirement on an Internet Access Provider to implement traffic-filtering mechanisms is consistent with EU legislation (and more precisely with its IP, e-Commerce, Data protection and e-Privacy regulations) as well as with the fundamental right of privacy and freedom of expression.

The wording of the question referred was:

  • (1)Do Directives 2001/29 ( copyright in the information society) and 2004/48 (enforcement of intellectual property rights), in conjunction with Directives 95/46 (Data protection), 2000/31 (e-commerce) and 2002/58 (e-Privacy), construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: 'They [the national courts] may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right', to order an Internet Service Provider (ISP) to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?
  • (2) If the answer to the question in paragraph 1 is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?