Translation from German 25 Kt 3C/09-58 (Austrian) Supreme Court as Supreme Cartel Court 16 Ok 4/10
[stamp:] Higher Regional Court Vienna Received on 17 MAR 2011
The (Austrian) Supreme Court as court of appeal [Rekursgericht] in cartel-law cases, through the President Hon.-Prof. Dr. [titles] Griss as the presiding judge and Hofrat Dr. [titles] Vogel and Hofrat Dr. [titles] E. Solé and the expert lay judges Kommerzialrat Dr. [titles] Bauer and Kommerzialrat Dr. [titles] Ertl as additional judges in the cartel-law case of the Petitioner, Compass-Datenbank GmbH, Matznergasse 17, Vienna, 14th District, represented by Galla & Herget Rechtsanwälte OEG in Vienna, versus the Respondent, the Republic of Austria, represented by Finanzprokuratur [Office of State Attorneys], Singerstrasse 17-19, Vienna, 1st District, to stop abuse of a dominant position as defined in Sections 5 and 26 of the Austrian Cartel Act [Kartellgesetz/KartG], upon the Petitioner's appeal [Rekurs] against the decision [Beschluss] of Higher Regional Court Vienna as cartel court of 8 March 2010, GZ [file ref.] 25 Kt 30/09-49, has made the following
decision in camera:
I. Pursuant to Art 267 TFEU the following questions are submitted to the European Court of Justice for preliminary ruling: 1. Is Art 102 TFEU to be interpreted to the effect that a public authority becomes engaged as an entrepreneur if it stores data in a database (Business Register) that is reported by businesses on account of statutory reporting duties and grants the right of inspection and/or causes production of printouts for consideration but prohibits any other acts of exploitation?
In the case that Question No. 1 is answered in the negative:
2. Does a situation where the public authority prohibits acts of exploitation going beyond the granting of a right of inspection and production of printouts in reliance upon its sui generis right to protection constitute entrepreneurial activity?
In the case that Question No. 1 or Question No. 2 is answered in the affirmative: 3. Is Art 102 TFEU to be interpreted to the effect that the principles of the rulings of 6 April 1995, Case C-241/91 and C-242/91, Magill TV Guide, and Case C-418/01, I.M.S. Health (essential facilities doctrine) are to be applied also if there is no "upstream market" because the protected data is collected and stored in a database (Business Register) within the scope of sovereign activity?
II. The proceedings on the Petitioner's appeal will be suspended until the preliminary ruling is received.
I. Facts and circumstances of the case: I.1. For more than 130 years the Petitioner and its legal predecessors (hereinafter: Petitioner) have held extensive collections of business information. In 1984 they started to create an electronic business data base on the basis of a card catalogue the data of which was checked, corrected and supplemented after inspection of the Commercial Register (Business Register). From 1986 onwards the Petitioner offered the database to the public via BTX and provided key accounts with customised information services. Since 1988 Austria-wide retrieval of data of shareholders of limited liability companies [GmbHs] and limited partners
[Kommanditisten] of partnerships has been possible. Since 1995 access to the database via the internet has been possible. Apart from the information that can be seen from the former Commercial Register and today's Business Register of the courts, the Petitioner's business data base contains additional information on the industry and the ÖNACE code, interests of shareholders and interests of the registered businesses. In addition, information about phone and fax numbers, bank account details, lines of business, internet and e-mail addresses, and a short name of the businesses as well as suitable search terms regarding the businesses can be retrieved. The capital expenditure for the business data base amounted to approximately
EUR 9 million between 1984 and 2000. As the publisher of the central journal for entries in the Business Register of the Republic of Austria the Petitioner received the data from the Federal Computing Centre [Bundesrechenzentrum] without any restriction on use until 2001. The Petitioner used the data also for its own business data base.
I.2. For many decades until 1990, the Respondent's commercial courts kept the Commercial Register, which documented fundamental facts and legal relationships of the full commercial businesses and in this way made them accessible to the public. Inspection of the said Register was only possible at the relevant Register Court for the businesses whose registered office was situated in the court's circuit. Moreover, you had to know either the Register Number or the name of the business. With effect as of 1 January 1991 the Commercial Register was migrated to the automated Business Register. Retroactive recording of business data was done between mid-1992 and the end of 1994. From 1993 it was possible to retrieve data via BTX; since mid-1999 retrieval via the internet has been possible. The total capital expenditure amounted to EUR 5.8 million. Apart from that, annual operating costs of at least EUR 3 million are incurred.
In 1999 the Respondent, after a call for tenders, awarded contracts to five businesses for them to establish clearing offices for transmission of Business Register data against payment of fees. As service providers those businesses establish the connection between the Business Register and a customer via the internet, identify the fees in the course of the information transport and collect them in their capacity as clearing offices. The clearing offices are prohibited from creating their own collections of data and/or from offering the data on the internet or elsewhere for consideration or free of charge, from changing the contents or presentation of the transported information and from adding advertising. Also the clearing offices' customers are prohibited from engaging in acts of exploitation that infringe the Respondent's sui generis right to which Respondent is entitled under copyright law with regard to the Business Register database (see paragraph IV.4).
The Respondent not only offers inspection of specific entries in the Business Register but also search functions which may be used either without limitation and for the entire federal territory or limited to certain areas, legal forms or legal natures. Also a search by (legal or
natural) person is possible, so that both multiple shareholdings and multiple offices of corporate officers can be seen.
I.3. In legal proceedings before Commercial Court Vienna instituted in 2001 the Respondent claimed a cease and desist order against the Petitioner and sued the Petitioner for accounting and payment. Those legal proceedings were intended to prohibit the Petitioner from exploiting data from the Business Register, including by storing, reproducing or forwarding it to third parties. By decision dated 9 April 2002, ref. 4 Ob 17/02g, the (Austrian) Supreme Court partly allowed a petition for a provisional measure of the same extent that had been filed with it and ordered the Petitioner, until the decision that would be rendered in the said legal proceedings would become non-appealable, to cease and desist from exploiting the Business Register database for the purpose of updating its own database, including storing or otherwise reproducing data from the same in order to forward them to third parties, to make such data accessible to them or to provide information from the same, unless the Petitioner had purchased such data for reasonable consideration that would go to the Respondent.
I.4. For technical reasons it is necessary to always retrieve, transfer and process the entire set of data of a business if the Petitioner merely wants to update data in its database. A possibility to retrieve change data separately is not offered by the Respondent; no such technical function exists.
II. Petitions and Pleadings of the Parties:
II.1. The Petitioner petitions that the Respondent be ordered A. - to cease and desist from providing up-to-date documents from the Business Register that contain all excerpts from the Business Register of those businesses where entries or cancellations occurred on the day before the data is made available in the Respondent's Business Register for an unreasonable consideration; - to make available to the Petitioner up-to-date documents from the Business Register that contain all excerpts from the Business Register of those businesses where entries or
cancellations occurred on the day before the data is made available in the Respondent's Business Register - for reasonable consideration or, alternatively, - for consideration the amount of which has to be in line with the provisions of the Austrian Federal Statute on Re-Use of Information from Public Agencies [Bundesgesetz über die Weiterverwendung von Informationen öffentlicher Stellen] and B. alternatively, for reasonable consideration, to grant the Petitioner a licence to use up-to-date documents from the Business Register that contain all excerpts from the Business Register of those businesses where entries or cancellations occurred on the day before the data is made available in the Respondent's Business Register for the Petitioner to be able to integrate such data into its own business data base and to distribute and make it available through its own business data base to customers for their use.
II.2. The Petitioner claimed that, while the keeping of the Register was a sovereign activity, production and selling of non-certified copies was not. Allegedly, a search of the Business Register via clearing offices did not necessarily have to be carried out by a public institution and was no task that was in the general interest. Accordingly, the Respondent was an entrepreneur when distributing Business Register data for consideration and, because of its sole power of disposal of Business Register data abused its dominant position by failing to align the fee it charged for searches of the Business Register with the Austrian Federal Statute on Re-Use of Information from Public Agencies. Allegedly, the prerequisites which the European Court of Justice wanted to be fulfilled for granting of a compulsory licence as stated in its ruling on Art 102 TFEU and in the essential facilities doctrine were fulfilled. The Petitioner's business data base was an innovative product because it offered the possibility to retrieve, apart from the Business Register data, other business data and a vast number of links and because the Petitioner offered charts of ownership structures and interconnections.
II.3. The Respondent replied that provision of Business Register data in execution of the Business Register Statute [Firmenbuchgesetz] and the Business Register Database Regulation [Firmenbuchdatenbankverordnung] was a sovereign activity, which was not subject to competition law. Even if one presupposed a private-sector activity, there was no abuse of a
dominant position. The Respondent could not be ordered to surrender data from its database that was protected by copyright for merely imitating products of the Petitioner and in this way to foster its own competitor. The data which the Petitioner purchased from the clearing offices was the essential core of the business information distributed by the Petitioner, which was reused commercially in violation of Section 4 (2) of the Business Register Database Regulation.
II.3. The Federal Cartel Attorney and the Federal Competition Authority agreed with those statements.
III. The case so far:
The court of first instance rejected the petition for a cease and desist order and the petition for provision of Business Register excerpts for reasonable consideration or consideration in line with the Austrian Federal Statute on Re-Use of Information from Public Agencies and dismissed the alternative petition to be granted a licence.
The Petitioner's appeal was directed against the above.
IV. Legal bases:
IV.1. The Business Register consists of a Main Register and the Collection of Documents. Pursuant to Section 1 of the Austrian Business Register Statute [Firmenbuchgesetz/FBG] it serves the purpose of recording and disclosing facts that have to be registered as prescribed by the Business Register Statute or other statutory provisions. All legal entities stated in Section 2 FBG have to be registered, such as, for example, sole proprietors, general partnerships, limited partnerships, joint-stock companies and limited liability companies; with all legal entities specific facts listed in Section 3 FBG have to be registered, such as, e.g., the name, the legal form, the seat/registered office, a brief description of the line of business, branches, if any, name and date of birth of persons entitled to represent the entity and commencement and the type of power of representation as well as liquidation or opening of insolvency proceedings. Special registration requirements are laid down in Sections 4, 5, 6 and 7 FBG, in
particular for insurance companies and co-operative societies. Also changes of registered facts must be notified to the court without delay (Section 10 FBG).
IV.2. Documents on the basis of which entries are made in the Main Register or safekeeping of which by a court is mandatory must be included in the Collection of Documents of the Business Register Court (which meanwhile is also done electronically) and, consequently, can also be inspected electronically in principle.
IV.3. Pursuant to Section 34 FBG anybody is authorised to carry out an individual search of the Business Register by means of automated data transmission subject to his technical and personal capacities. A search of the Business Register covering all entries of all Business Register Courts or of at least one Business Register Court (comprehensive search) may, depending on the technical and personal capacities, be processed by transmission of a comprehensive excerpt to a special data carrier. In addition, a right to inspect the Main Register through printouts (Business Register excerpts) at the Business Register Courts and, depending on the technical capacities, at the District Courts and at notary's offices (Sections 33 and 35 FBG) is granted. Such excerpts (printouts) must be certified by the Court unless the requirement is waived (Section 9 (2) Austrian Business Code [Unternehmensgesetzbuch/ UGB]. Pursuant to Section 10 UGB entries into the Business Register also have to be published in the Ediktsdatei [Official Database of Court Publications of the Republic of Austria], which is also kept electronically, and in the Amtsblatt [official journal] of Wiener Zeitung.
IV.4. The Business Register Database Regulation determines the fees for individual searches and comprehensive searches. The fees, which are to be collected by the clearing offices and payable to the Federal Government, mainly depend on the type of information retrieved (e.g. Business Register excerpt with up-to-date data or an excerpt with historical [= cancelled] data or with a link to Trade Register data, partial excerpts, search for businesses, persons, with or without links to other data of the Business Register). Section 4 (2) of the Business Register Database Regulation provides that the authority to carry out a Business Register search as defined in Sections 34 et seq. FBG grants no right to take other acts of exploitation beyond the search which, according to the provisions of Sections 76c et seq. of the Austrian
Copyright Act [Urheberrechtsgesetz/UrhG] are reserved to the Federal Government as the maker of the database.
IV.5. Sections 76c et seq. UrhG were introduced in implementation of directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases ("Database Directive"). As a matter of principle, the sui generis right comprehensively reserves any type of exploitation to the maker. Special regulations on exploitation of the sui generis right, e.g. for public authorities as makers of a proprietary database in an administrative procedure do not exist.
IV.6. In implementation of directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (PSI directive) the Federal Statute on Re-Use of Information from Public Agencies (IWG) was enacted. This Statute provides for private-law enforcement of claims to re-use documents of public agencies, provided that they provide such documents for re-use, and defines criteria for calculating the fees collected therefor. Access to Business Register data is not covered by the same.
V.1. The alleged abuse of a dominant position affects the entire territory of the Republic of Austria and, accordingly, a substantial part of the common market, which is why European competition law is applicable (cf. e.g. Rehbinder in Immenga/Mestmäcker, Wettbewerbsrecht EG/Teil 1, Art 81(1) ECT, marginal no. 289 with reference to ECJ 17 October 1972, Coll. 1972, 977 para 29, VCH; ECJ 27 January 1987, Coll. 1987, 405 para 44-50, Verband der Sachversicherer; ECJ 19 April 2004, Coll. 2004 I 4933 para 28, British Sugar and many others).
V.2. The prohibition of Art 102 TFEU addresses businesses. Also public businesses may be addressees of this provision, provided that they carry on a business activity, independent of whether this is done in the form of public law or private law. The European Court of Justice defines a business as any entity carrying on an economic activity, independent of its legal
form and the type of financing. The entrepreneurial nature is to be determined relatively, i.e. with regard to a specific activity. A legal personality may also be considered a business with regard only to a part of its activities if such activity is to be qualified as a business activity (ECJ C-264/01 and others, Coll. 2004, I-2524 para 58, AOK; Case 118/85, Coll. 1987, I-2599 para 7, Commission/Italy).
The question whether state agencies are businesses ("undertakings") has to be denied if and to the extent that they act as holders of public authority (ECJ Case C-343/95, Coll. 1997, I-1547 Diego Cali). The relevant factor is whether the public sector's activity at least also safeguards interests of the general public and is interconnected with exercise of privileges according to its nature, subject matter and the rules applicable to it, which typically are of a sovereign nature (ECJ Case C-82/01 P, Coll. 2002, I-9297, Aeroports de Paris; Case C-343/95, Coll. 1997, I-1547 Diego Cali).
V.3. The collection of the data contained in the Business Register database is at least interconnected with an exercise of sovereign privileges insofar as there are statutory obligations to report the facts regulated in the law without which the database could not be made. However, according to its statutory mission the Business Register not only serves the purpose of recording but also that of disclosing facts which have to be registered there according to statutory provisions. This is an argument for the opinion that also granting the right to inspect the database is to be considered a sovereign activity.
V.3.1. The Respondent grants the right to inspect the Register via clearing offices for consideration and prohibits any exploitation of the data beyond inspection in reliance upon the sui generis protection of the database. Thus, any re-use of the data by private information services is excluded. Accordingly, the question arises whether a situation where the public authority monopolises the data that has to be reported and disclosed by virtue of the law by processing the same in a database which is protected by a sui generis right still constitutes a sovereign activity.
An argument against classification as a sovereign activity is that by relying on the fact that the database is protected by copyright law, the Respondent claims a right which is not of a
sovereign but of a private-law nature. To that extent the Respondent does not safeguard interests of the general public either; for the general public must be interested in maintaining a manifold and also economical offer through competition in the field of information services.
V.4. If the Respondent's activity is classified as that of a business/undertaking, then the next question arises, namely whether the principles of the rulings of 6 April 1995, Cases C-241/91 and C-242/91, Coll. 1995 I-743, Magill TV Guide, and of 29 April 2004, Case C-418/01, Coll. 2004 I-5039, I.M.S. Health (essential facilities doctrine) are applicable also if there is no "upstream market" because the data is collected and stored by a public authority.
V.4.1. According to the stated rulings a business abuses its position if it denies access to protected products or services which are indispensable for a certain activity and for which there is at least a potential demand, and if the denial is not justified and is likely to exclude all competition from the derived market.
V.4.2. Due to the ascertained facts and circumstances it is obvious that the data from the Business Register forms the essential basis of the information created and/or added by the Petitioner, which data is indispensable for the Petitioner's activity, and that a prohibition of exploitation of the contents of the Business Register is likely to exclude any activity of businesses and, thus, all competition from this derived market. The fact that a (not only potential) demand for business information and data about businesses exists, which at least includes the data contained in the Business Register database, can be seen from the fact alone that the Petitioner has been engaged in this kind of business activity (for at least a few decades). Justifying circumstances cannot be seen; at least so far.
V.4.3. The Petitioner claims that it creates a new product insofar as it offers, apart from information about the industry (the ÖNACE code) as well as phone and fax numbers, bank account details, lines of business, internet and e-mail addresses, a brief description and suitable search terms of the businesses, not only verbal descriptions but also complex charts and graphical illustrations of business interrelations. In this respect there has been no ascertainment so far.
V.4.4. Even if all stated conditions (see item V.4.1.) were fulfilled, an argument against application of the essential facilities doctrine could be that although exploitation (if any) of the protected data is effected within the scope of a business activity, collection and preparation of the same is not, i.e. that insofar no upstream market exists. An argument in favour of applicability also in that case could be that also the information that was the subject matter of the ruling in Case C-241/91 and C-242/91, Magill TV Guide, had not been created for (separate) exploitation but had been a "side product" of broadcasting television programmes and had been published by each broadcasting company separately on a weekly basis or had been provided free of charge to newspapers and magazines upon request for dayby-day publication. Moreover, the Petitioner has kept a business data base based on the Commercial Register (Business Register) for decades, and if the essential facilities doctrine were not applicable it could only be reviewed according to (national) general private-law rules on the legal obligation to contract whether the Respondent must grant the Petitioner a licence for use of the data.
V.4.5. Another argument for application of competition law might be that according to directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (PSI directive) public data is an important primary material for digital content products and services and European companies should be allowed to exploit its potential (recital 5). Even if the directive contains no obligation to allow re-use of data but leaves that decision to the Member States (recital 9) disclosure should, on the one hand, not only concern the political process but also the legal and administrative process (recital 16) and, on the other hand, public agencies should exercise their copyright in a way that facilitates re-use even if the existence of such proprietary rights is not affected (recital 22).
VI. Until receipt of the preliminary ruling, the proceedings on the Petitioner's appeal [Rekurs] are to be suspended pursuant to Section 90a (1) of the Austrian Court Organisation Act [Gerichtsorganisationsgesetz/GOG].
Austrian Supreme Court as Supreme Cartel Court
Vienna, 28 February 2011 Dr. G r i s s Copy certified correct by the head of the court section: [signature]