The Pirate Bay remains freely accessible in the Netherlands pending the outcome of a landmark lawsuit. Before making a final decision, the Dutch Supreme Court wants clarification from the EU Court of Justice on several issues. Among other things, the EU Court must decide whether The Pirate Bay communicates illegal content to the public.

Early last year 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 local anti-piracy organization BREIN took the matter to the Supreme Court.

Today, the Court decided to postpone its final decision. Following a recommendation from the Advocate General it decided to stay the proceedings and refer two key questions to the EU Court of Justice, seeking clarification.

The first question that requires a European review is whether The Pirate Bay is actually communicating illegal content to the public.

More specifically, whether the operator of a website is communicating copyrighted works to the public if the site doesn’t host any content, but merely links to and categorizes meta-information so users can download the linked files.

If this question is answered negatively then the EU Court should clarify whether ISPs can be ordered to block a site if the operator facilitates copyright infringement in this way.

A decision at the European level will be 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 questions are resolved at the EU Court the Dutch Supreme Court will make its final decision.