Judgment of the Court (Grand Chamber) of 9 November 2004 in Case C-338/02 (reference for a preliminary ruling from the Högsta domstolen): Fixtures Marketing Ltd v Svenska Spel AB (Directive 96/9/EC — Legal protection of databases — Sui generis right — Definition of investment in the obtaining, verification or presentation of the contents of a database — Football fixture lists — Betting)
Date: 2005-01-08
Institutions: Court of Justice
Subjects: data protection, database, intellectual property, interpretation of the law, investment

C 6/8

EN

Official Journal of the European Union

8.1.2005

1. Articles 45(1) and 59(1) of the Europe Agreement establishing
an association between the European Communities and their
Member States, of the one part, and the Republic of Bulgaria, of
the other part, approved by Decision 94/908/EC, ECSC, Euratom
of the Council and the Commission of 19 December 1994, read
together, Articles 44(3) and 58(1) of
the Europe Agreement
establishing an association between the European Communities
and their Member States, of the one part, and the Republic of
the other part, approved by Decision 93/743/EC,
Poland, of
ECSC, Euratom of
the Council and the Commission of 13
December 1993, read together, and Articles 45(3) and 59(1) of
the Europe Agreement establishing an association between the
European Communities and their Member States, of the one part,
and the Slovak Republic, of the other part, approved by Decision
94/909/EC, ECSC, Euratom of the Council and the Commission
of 19 December 1994, read together, do not in principle preclude
legislation of a Member State involving a system of prior control
which makes entry into the territory of that Member State with a
view to establishment as a self-employed person conditional on the
issue of a temporary residence permit by the diplomatic or consular
services of that Member State in the country of origin of the
person concerned or in the country where he is permanently resi-
dent. Such a system may legitimately make grant of that permit
subject to the condition that the person concerned must show that
he genuinely intends to take up an activity as a self-employed
person without at the same time entering into employment or
having recourse to public funds, and that he possesses, from the
outset, sufficient financial resources for carrying out the activity as
a self-employed person and has reasonable chances of success. The
scheme applicable to such residence permits issued in advance
must, however, be based on a procedural system which is easily
accessible and capable of ensuring that the persons concerned will
have their applications dealt with objectively and within a reason-
able time, and refusals to grant a permit must be capable of being
challenged in judicial or quasi-judicial proceedings.

2. Those provisions of the Association Agreements must be inter-
preted as likewise not in principle precluding such national legisla-
tion from providing that the competent authorities of the host
Member State are to reject an application for a full residence
permit with a view to establishment in accordance with the Asso-
ciation Agreements submitted in the territory of that State when
the applicant lacks the temporary residence permit thus required by
that legislation.

3. It is immaterial in this regard that the applicant claims to satisfy
clearly and manifestly the necessary substantive requirements for
grant of the temporary residence permit and the full residence
permit with a view to such establishment or that the applicant is
legally resident in the host Member State on another basis on the
date of his application where it appears that the latter is incompa-
tible with the express conditions attached to his entry into that
Member State and in particular those relating to the authorised
duration of the stay.

(1) OJ C 274 of 9.11.2002.

JUDGMENT OF THE COURT

(Grand Chamber)

of 9 November 2004

in Case C-338/02 (reference for a preliminary ruling from
the Högsta domstolen): Fixtures Marketing Ltd v Svenska
Spel AB (1)

(Directive 96/9/EC — Legal protection of databases — Sui
generis right — Definition of investment in the obtaining,
verification or presentation of the contents of a database —
Football fixture lists — Betting)

(2005/C 6/13)

(Language of the case: Swedish)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

received at

In Case C-338/02: reference for a preliminary ruling under
Article 234 EC, from the Högsta domstolen (Sweden), by deci-
the Court on
sion of 10 September 2002,
in the proceedings between Fixtures
23 September 2002,
(Grand
Marketing Ltd and Svenska Spel AB — the Court
Chamber),
Jann,
C.W.A. Timmermans, A. Rosas and K. Lenaerts (Rapporteur),
Schintgen,
J.-P.
Presidents of Chambers,
N. Colneric and J.N. Cunha Rodrigues, Judges; C. Stix-Hackl,
Advocate General; M. Múgica Arzamendi and M.-F. Contet,
Principal Administrators, for the Registrar, has given a judg-
ment on 9 November 2004, in which it has ruled:

composed of: V. Skouris, President, P.

Puissochet, R.

The expression ‘investment in … the obtaining … of the contents’ of
a database in Article 7(1) of Directive 96/9/EC of the European
Parliament and of the Council of 11 March 1996 on the legal
protection of databases must be understood to refer to the resources
used to seek out existing independent materials and collect them in
the database. It does not cover the resources used for the creation of
materials which make up the contents of a database. In the context of
drawing up a fixture list for the purpose of organising football league
fixtures, therefore, it does not cover the resources used to establish the
dates, times and the team pairings for the various matches in the
league.

(1) OJ C 274 of 9.11.2002.