CELEX: C2002/274/40
Language: en
Date: 2002-11-09 00:00:00
Title: 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

9.11.2002                EN                   Official Journal of the European Communities                                       C 274/23
Action brought on 20 September 2002 by the Com-                          1.   In assessing whether a database is the result of a
mission of the European Communities against the Italian                       ‘substantial investment’ within the meaning of Article 7(1)
                              Republic                                        of Council Directive 96/9/EC (1) of 11 March 1996 on
                                                                              the legal protection of databases (the ‘database directive’)
                          (Case C-337/02)                                     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
                          (2002/C 274/39)
                                                                              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
An action against the Italian Republic was brought before the                 constitutes a prerequisite for the database?
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.
                                                                              AB Svenska Spel contends in this case that Fixtures
                                                                              Marketing Limited’s investment is primarily concerned
The applicant claims that the Court should:                                   with the drawing up of the fixture lists for the English
                                                                              and Scottish football leagues and not with the databases
—     Declare that, by maintaining in force Article 3(3) of Law               where the data are stored. Fixtures Marketing Limited, for
      No 10 of 10 July 1991, which lays down the conditions                   its part, argues that it is not possible to distinguish the
      to which are subject those maritime companies having                    work for the purpose of planning the game and that for
      their main offices in another Member State if they are to               the purpose of drawing up the fixture lists.
      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.
                                                                         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?
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
                                                                              AB Svenska Spel contends that Fixtures Marketing Lim-
which intend to exercise their right to establish themselves in
                                                                              ited’s creation of the database is not intended to facilitate
Italy and participate in conference liner traffic from that
State, additional conditions which such companies are not                     football pools and other gaming activities but that
                                                                              such activities are a by-product of the purpose of the
necessarily required to fulfil in the Member State of origin. The
Commission concludes that that amounts to an infringement                     investment. Fixtures Marketing Limited, for its part,
                                                                              argues that the purpose of the investment is irrelevant
of Article 43 EC in conjunction with Article 48 EC.
                                                                              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.
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                3.   What do the terms ‘a substantial part, evaluated qualitat-
                                Spel                                          ively and/or quantitatively, of the contents of that data-
                                                                              base’ in Article 7(1) mean?
                          (Case C-338/02)
                          (2002/C 274/40)
Reference has been made to the Court of Justice of the                   4.   Is the directive’s protection under Article 7(1) and
European Communities by order of the Högsta Domstolen                         Article 7(5) against ‘extraction and/or re-utilisation’ of the
(Supreme Court) of 10 September 2002, received at the Court                   contents of a database limited to such use as entails a
Registry on 23 September 2002, for a preliminary ruling in                    direct exploitation of the base or does the protection also
the case of Fixtures Marketing Limited against AB Svenska Spel                cover use in cases where the contents are available from
on the following questions:                                                   another source (second-hand) or are generally accessible?
 ---pagebreak--- C 274/24               EN                     Official Journal of the European Communities                                   9.11.2002
      AB Svenska Spel contends that the company had no                           Removal from the register of Case C-413/00 ( 1)
      knowledge of the databases and obtained the data for the
      pools coupons from other sources and that what                                              (2002/C 274/42)
      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        By order of 2 July 2002 the President of the First Chamber of
      assessment whether the data were obtained from sources             the Court of Justice of the European Communities ordered the
      other than the fixture lists since the data originally came        removal from the register of Case C-413/00: Commission of
      from them.                                                         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                      Removal from the register of Case C-303/01 ( 1)
      football leagues. AB Svenska Spel, for its part, contended
      that it is wrong to look at several pools coupons together                                  (2002/C 274/43)
      in making an assessment and disputes that their use is in
      breach of Article 7(5) of the directive.
                                                                         By order of 31 July 2002 the President of the Court of Justice
( 1) OJ L 77, 27.3.1996, p. 20.                                          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 Cases C-427/99 P ( 1) and
                           C-371/00 P (2)
                         (2002/C 274/41)
                                                                                 Removal from the register of Case C-44/02 (1)
By order of 1st August 2002 the President of the Court of                                         (2002/C 274/44)
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.                     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-
( 1) OJ C 20, 22.1.2000.                                                 munities v Portuguese Republic.
( 2) OJ C 355, 25.11.2000.
                                                                         (1 ) OJ C 97, 20.4.2002.