Internet providers in Europe can be ordered to block access to The Pirate Bay, even though the site itself doesn't store any infringing material. This is the advice Advocate General Szpunar has sent to the EU Court of Justice in what may turn out to be a landmark case.

In 2014, The Court of The Hague handed down its decision in a long running case which had previously forced two Dutch ISPs, Ziggo and XS4ALL, to block The Pirate Bay.

The Court ruled against local anti-piracy outfit BREIN, concluding that the blockade was ineffective and restricted the ISPs’ entrepreneurial freedoms.

The Pirate Bay was unblocked by all local ISPs after the decision while BREIN took the matter to the Supreme Court, which in its turn referred the case to the EU Court of Justice, seeking further clarification.

After a careful review of the case, EU Advocate General (AG) Maciej Szpunar submitted his opinion to the top EU Court today, which brings bad new for users of the torrent site.

The first question that required a European review is whether The Pirate Bay is communicating illegal content to the public. A relevant issue since the torrent site doesn’t store any infringing content, only metadata.

The Advocate General concludes that in this case a website can still be seen as communicating works to the public if the operator is made aware that copyrighted works are being shared without permission, but fails to take action.

If a local court agrees on this, then they can order Internet providers to block the site in accordance with EU law, AG Szpunar concludes.

The second question comes into play if the EU Court of Justice counters the advice and rules that The Pirate Bay isn’t communicating infringing works to the public. Then the court must clarify whether ISPs can be ordered to block a site if the operator merely facilitates copyright infringements of third parties.

Again, the Advocate General believes that blocking measures are warranted under these circumstances. However, local courts must ensure that the blocks don’t unnecessarily prevent Internet users from accessing legal content.

The proportionality of such decisions needs to be reviewed on a case-by-case basis. In the case of The Pirate Bay, a block would be appropriate according to the AG, who notes that rightsholders have determined that 90% of the available files are infringing and that the operators expressly refuse to respond to takedown requests.

“In such circumstances, in my view, depriving internet users of access to information, by blocking the TPB site, would be proportionate to the significance and seriousness of the copyright infringements committed on that site,” AG Szpunar concludes.

“My assessment is based on both the proportion of illegal content and the behavior of the operators of that site,” he adds.

Blocking efforts are nothing new for The Pirate Bay team, who hope that people will find their way arount the artificial barriers.

“Hopefully a lot more people will get smart and start using the .onion address. Otherwise they’re going to be using VPN’s and proxies. And unfortunately many will get scammed because they don’t know better,” TPB’s plc365 says.

The Advocate General’s advice is not binding, but the European Court of Justice often uses such input as the basis of its rulings. The final verdict is expected to be released later this year.

A decision at the European level is important, as it may also affect court orders in other countries, such as the UK, Italy, and Belgium, where The Pirate Bay and other torrent sites are blocked as well.

After the EU Court reaches a conclusion, the Dutch Supreme Court will make its final decision.