Case C-338/02: Reference for a preliminary ruling by the Högsta Domstolen by order of that Court of 10 September 2002 in the case of Fixtures Marketing Limited against AB Svenska Spel
Date: 2002-11-09
Institutions: Court of Justice
Subjects: data protection, database, intellectual property, interpretation of the law, investment

9.11.2002

EN

Official Journal of the European Communities

C 274/23

Action brought on 20 September 2002 by the Com-
mission of the European Communities against the Italian
Republic

1.

(Case C-337/02)

(2002/C 274/39)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 20 Septem-
ber 2002 by the Commission of the European Communities,
represented by Antonio Aresu and Knut Simonsson, acting as
Agents.

The applicant claims that the Court should:

— Declare that, by maintaining in force Article 3(3) of Law
No 10 of 10 July 1991, which lays down the conditions
to which are subject those maritime companies having
their main offices in another Member State if they are to
be treated identically to Italian maritime companies so far
as concerns participating in the Italian share of the
conference liner traffic, the Italian Republic has failed to
fulfil its obligations under Articles 43 and 48 EC;

— Order the Italian Republic to pay the costs.

Pleas in law and main arguments

Article 3(3) of Italian Law No 210 of 1991 lays down, for
those maritime companies established in other Member States
which intend to exercise their right to establish themselves in
Italy and participate in conference liner traffic from that
State, additional conditions which such companies are not
necessarily required to fulfil in the Member State of origin. The
Commission concludes that that amounts to an infringement
of Article 43 EC in conjunction with Article 48 EC.

Reference for a preliminary ruling by the Högsta Dom-
stolen by order of that Court of 10 September 2002 in
the case of Fixtures Marketing Limited against AB Svenska
Spel

(Case C-338/02)

(2002/C 274/40)

In assessing whether a database is the result of a
‘substantial investment’ within the meaning of Article 7(1)
of Council Directive 96/9/EC (1) of 11 March 1996 on
the legal protection of databases (the ‘database directive’)
can the maker of a database be credited with an invest-
ment primarily intended to create something which is
independent of the database and which thus does not
merely concern the ‘obtaining, verification or presen-
tation’ of the contents of the database? If so, does it make
any difference if the investment or part of it nevertheless
constitutes a prerequisite for the database?

AB Svenska Spel contends in this case that Fixtures
Marketing Limited’s investment is primarily concerned
with the drawing up of the fixture lists for the English
and Scottish football leagues and not with the databases
where the data are stored. Fixtures Marketing Limited, for
its part, argues that it is not possible to distinguish the
work for the purpose of planning the game and that for
the purpose of drawing up the fixture lists.

2. Does a database enjoy protection under the database
directive only in respect of activities covered by the
objective of the database maker in creating the database?

AB Svenska Spel contends that Fixtures Marketing Lim-
ited’s creation of the database is not intended to facilitate
football pools and other gaming activities but
that
such activities are a by-product of the purpose of the
investment. Fixtures Marketing Limited,
for its part,
argues that the purpose of the investment is irrelevant
and disputes that the possibility of exploiting the database
for football pools constitutes a by-product of the actual
purpose of the investment in the database.

3. What do the terms ‘a substantial part, evaluated qualitat-
ively and/or quantitatively, of the contents of that data-
base’ in Article 7(1) mean?

Reference has been made to the Court of Justice of the
European Communities by order of the Högsta Domstolen
(Supreme Court) of 10 September 2002, received at the Court
Registry on 23 September 2002, for a preliminary ruling in
the case of Fixtures Marketing Limited against AB Svenska Spel
on the following questions:

4.

Is the directive’s protection under Article 7(1) and
Article 7(5) against ‘extraction and/or re-utilisation’ of the
contents of a database limited to such use as entails a
direct exploitation of the base or does the protection also
cover use in cases where the contents are available from
another source (second-hand) or are generally accessible?

C 274/24

EN

Official Journal of the European Communities

9.11.2002

AB Svenska Spel contends that the company had no
knowledge of the databases and obtained the data for the
from other sources and that what
pools coupons
appeared on the pools coupons was not the whole or a
substantial part of the fixture lists. Fixtures Marketing
Limited, for its part, argues that it was irrelevant to the
assessment whether the data were obtained from sources
other than the fixture lists since the data originally came
from them.

Removal from the register of Case C-413/00 (1)

(2002/C 274/42)

By order of 2 July 2002 the President of the First Chamber of
the Court of Justice of the European Communities ordered the
removal from the register of Case C-413/00: Commission of
the European Communities v Kingdom of the Netherlands.

5. How should the

terms

‘normal

exploitation’

and

‘unreasonably prejudice’ in Article 7(5) be interpreted?

(1) OJ C 28, 27.1.2001.

Fixtures Marketing Limited argues that AB Svenska Spel
has repeatedly and systematically extracted and re-utilised
the contents of the database for commercial purposes, in
a manner which conflicts with a normal exploitation of
that database and thereby unreasonably prejudiced the
football leagues. AB Svenska Spel, for its part, contended
that it is wrong to look at several pools coupons together
in making an assessment and disputes that their use is in
breach of Article 7(5) of the directive.

( 1) OJ L 77, 27.3.1996, p. 20.

Removal from the register of Cases C-427/99 P (1) and
C-371/00 P (2)

(2002/C 274/41)

By order of 1st August 2002 the President of the Court of
Justice of the European Communities ordered the removal
from the register of Cases C-427/99 P and C-371/00 P: RJB
Mining plc v Commission of the European Communities.

( 1) OJ C 20, 22.1.2000.
( 2) OJ C 355, 25.11.2000.

Removal from the register of Case C-303/01 (1)

(2002/C 274/43)

By order of 31 July 2002 the President of the Court of Justice
of the European Communities ordered the removal from the
register of Case C-303/01: Alexandros K. Kefalas and Others v
Elliniko Dimosio (the Greek State) and Others.

(1) OJ C 56, 31.7.2002.

Removal from the register of Case C-44/02 (1)

(2002/C 274/44)

By order of 2 July 2002 the President of the Court of Justice of
the European Communities ordered the removal from the
register of Case C-44/02: Commission of the European Com-
munities v Portuguese Republic.

(1) OJ C 97, 20.4.2002.