Case C‑138/11, Compass-Datenbank GmbH v. Österreich

Court further defines concept of undertaking

>> This reference for a preliminary ruling, which concerned the interpretation of Art. 102 TFEU, had been made in proceedings between Compass-Datenbank and Austria  in relation to the making available of data from the companies register (Firmenbuch) stored in a database.

Compass-Datenbank was a limited liability company established under Austrian law which operated a database containing economic data for the purposes of providing information services.

In order to provide its information services, Compass-Datenbank required access to daily updates of extracts from the Firmenbuch concerning entries or deletion of information by undertakings. The information services thus provided were based on information contained in the Firmenbuch, supplemented by information resulting from searches carried out by Compass-Datenbank’s own editorial services and by other information, such as that emanating from Chambers of Commerce.

In the course of 2001, Austria brought before the Handelsgericht Wien in 2001 (pictured), an action seeking, inter alia, to prevent Compass-Datenbank from using the Firmenbuch data, including storage, reproduction or transmission of that data to third parties.

In the present case, the referring court asked, in essence, whether the activity of a public authority consisting in the storing, in a database, of data which undertakings were obliged to report on the basis of statutory obligations, in permitting interested persons to search for that data and/or in providing them with print-outs thereof in return for payment, while prohibiting any other used of that data – that authority relying, inter alia, on the sui generis protection granted to it as maker of the database in question – constituted an economic activity, meaning that that public authority was to be regarded, in the course of that activity, as an undertaking, within the meaning of Art. 102 TFEU.

The Court first of all reiterated that an undertaking was any entity engaged in an economic activity, irrespective of its legal status and the way in which it was financed (see, inter alia, Case C41/90 Höfner and Elser [1991] and Joined Cases C-159/91 and C-160/91 Poucet and Pistre [1993].

The Court held that any activity consisting in offering goods and services on a given market was an economic activity (see Case C82/01 P Aéroports de Paris v Commission [2002]; Case C-49/07 MOTOE [2008]; and Case C-437/09 AG2R Prévoyance [2011].

Thus, the State itself or a State entity might act as an undertaking (see, to that effect, Case 41/83 Italy v Commission [1985]).

By contrast, activities which fell within the exercise of public powers were not of an economic nature justifying the application of the FEU Treaty rules of competition (see, to that effect, Case 107/84 Commission v Germany [1985] and Case C-364/92 SAT Fluggesellschaft [1994]).

In addition, a legal entity, and inter alia a public entity, might be regarded as an undertaking in relation to only part of its activities, if the activities which form that part must be classified as economic activities.

In so far as a public entity exercises an economic activity which could be separated from the exercise of its public powers, that entity, in relation to that activity, acts as an undertaking, while, if that economic activity could not be separated from the exercise of its public powers, the activities exercised by that entity as a whole remained activities connected with the exercise of those public powers (see, to that effect, Case C-113/07 P SELEX Sistemi Integrati v Commission [2009]).

In addition, the fact that a product or a service supplied by a public entity and connected to the exercise by it of public powers was provided in return for remuneration laid down by law and not determined, directly or indirectly, by that entity, was not alone sufficient for the activity carried out to be classified as an economic activity and the entity which carried it out as an undertaking.

The Court held that in the light of the entirety of that case-law, a data collection activity in relation to undertakings, on the basis of a statutory obligation on those undertakings to disclose the data and powers of enforcement related thereto, fell within the exercise of public powers. As a result, such an activity was not an economic activity.

Equally, an activity consisting in the maintenance and making available to the public of the data thus collected, whether by a simple search or by means of the supply of print-outs, in accordance with the applicable national legislation, also did not constitute an economic activity, since the maintenance of a database containing such data and making that data available to the public were activities which could not be separated from the activity of collection of the data. The collection of the data would be rendered largely used less in the absence of the maintenance of a database which stores the data for the purpose of consultation by the public.

The Court added that the charging by Austria of fees or payments due for the making available to the public of that information could not change the legal classification of that activity, meaning that it did not constitute an economic activity.

Furthermore, a public entity which created a database and which then relied on intellectual property rights, and in particular the abovementioned sui generis right, with the aim of protecting the data stored therein, did not act, by reason of that fact alone, as an undertaking.

>> Text of Judgement