European Court of Justice rules that Austria does not act as an undertaking in collecting and making available data from the companies register

On 12 July 2012 the European Court of Justice (“ECJ”) – after a preliminary reference from the Austrian Supreme Court (“Oberster Gerichtshof”) – ruled in Case C‑138/11 that storing data in a database, which undertakings were obliged to report on due to statutory obligations and permitting interested persons to search for data and/or providing them with hand-outs did not constitute an economic activity and therefore the Republic of Austria did not act as an undertaking within the meaning of Article 102 TFEU. This decision is in line with the opinion of Attorney General Jääskinen delivered on 26 April 2012.

The main proceedings in Austria involve Compass-Datenbank, a limited liability company which operates a database to provide information services. Compass-Datenbank brought an action against the Republic of Austria to make available to it, in return for remuneration, certain documents from the companies register (“Firmenbuch”). Compass-Datenbank argued that under the essential facilities doctrine the Republic of Austria, as an undertaking having a dominant position on the market, was obliged to provide it with data from the Firmenbuch.

The three questions referred to the ECJ were: firstly, whether the public authority acts as an undertaking in storing data and allowing inspection and/or print-outs in return for payment, but prohibiting any more extensive use. If it does not, does the public authority act as an undertaking when it prohibits the uses going beyond allowing inspection and the creation of print-outs by relying on its sui generis right to protection as the maker of the database? If the answer of the ECJ to these questions is that the public authority acts as undertaking, is the essential facilities doctrine to be applied when there is no upstream market?

The ECJ held “that 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, falls within the exercise of public powers”. Accordingly, that activity did not constitute economic activity. It also held that the maintenance and making available of the collected data to the public did not constitute an economic activity since these activities could not be separated from the activity of collecting the data. The legal classification was not altered by the fact that searches and/or the provision of printouts were carried out for remuneration, as charging for providing the data was inseparable from the making available of the data.

The ECJ further held that a public entity relying on the sui generis protection granted to it as the maker of the database in accordance with Article 7 of Directive 96/9/EC on the legal protection of databases did not by that fact alone act as an undertaking. The ECJ also held that the ISP Directive was irrelevant for that case since the Firmenbuch data was not covered by the law which transposed that Directive into Austrian law.

As it held that Austria did not act as an undertaking, the ECJ did not address the question on the essential facilities doctrine. [Nicole Daniel]