THE NOTION OF UNDERTAKING–COMPANY REGISTERS

Advocate General JÄÄSKINEN analysed in the case C-138/11 Compass-Datenbank GmbH v Republik Österreich, whether, the Austrian State is acting as an ‘undertaking’ in the sense of Article 102 TFEU by prohibiting both re-use of data contained on its public register of businesses (‘the undertakings register’) and the commercialisation of this data to create a more comprehensive business information service.

The AG looked at three different issues, whether these are economic activities or not:

(i) storing in a database (the undertakings register) information provided by businesses on the basis of statutory reporting obligations;

(ii) allowing inspection and/or printouts to be made of the undertakings register in return for payment; and

(iii) prohibiting re-utilisation of the information contained in the undertakings register.

The AG noted that at present there is no evidence to the effect that the statutory court fee alone or together with the remuneration charged by the billing agencies would exceed the administrative cost of providing a copy of documents or particulars recorded in the undertakings register in the sense of Article 3(3) of Directive 68/151. If it were, the pricing system applied by Austria could be challenged in national courts or, at a general level, in infringement proceedings under Article 258 TFEU.

Even if allowing inspection and/or printouts of the undertakings register were considered to be an economic activity, it would be indivisible from the functions of collecting the data. Economic and public activities will be severable if the economic activity is not closely linked to the public activity, and the relationship between the two is merely indirect.

According to the AG the company register is connected to the utilization of public power and is not an economic activity, even if the data is provided for renumeration to third parties.

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