On 12 July 2012, the European Court of Justice ("ECJ") handed down an interesting ruling (Case C-138/11) on the question of whether a State entity that registers certain information and makes this available to the public, qualifies as an undertaking within the meaning of competition law.
Austrian national law requires a company to publish certain information on its business activities in a register (the "Register"). The public has the right to access these data, in return for a fee payment. However, under Austrian law users who access information from the Register are prohibited from re-using this information.
Compass-Datenbank is a company that operates a database containing economic data for the purpose of providing information services. In order to perform such information services, Compass-Datenbank requires daily updates of the data recorded in the Register, which is then supplemented by its own research.
In national proceedings, the Austrian State sought an injunction against Compass-Datenbank to prohibit it from using the Register. Compass-Datenbank in turn argued that the Austrian State had abused its dominant position by prohibiting Compass-Datenbank from accessing the Register in return for payment.
The national proceedings eventually led the Austrian Supreme Court to question the ECJ as to whether article 102 of the TFEU must be interpreted as meaning that a public authority should indeed be presumed to act as an undertaking if it stores data reported by undertakings on the basis of statutory reporting obligations in a Register and then allows the inspection of and/or printouts of such information to be made in return for payment, but prohibits any more extensive use.
With reference to established case-law, the ECJ first of all reiterated that any activity consisting in offering goods and services on a given market is an economic activity. On the other hand, activities that fall within the exercise of public powers are not of an economic nature.
The ECJ subsequently considered that a data collection activity in relation to companies, on the basis of a statutory obligation on those companies to disclose the data and powers of enforcement related thereto, falls within the exercise of public powers. Equally, an activity consisting in the maintenance of and making available to the public of the data thus collected neither constitutes an economic activity. The reason for this is that the collection of the data "would be rendered largely useless in the absence of the maintenance of a database which stores the data for the purpose of consultation by the public".
The judgment is a reminder that for a State entity to qualify as an undertaking, it is not sufficient that it offers a service to the public in return for a fee payment. This is especially true if the service is closely related to an activity that falls within the exercise of public powers.