Compass-Datenbank GmbH v Republik Österreich.
Date: 2012-07-12
35. In that regard, it is settled case-law that, for the purposes of the application of the provisions of European Union competition law, an undertaking is any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (see, inter alia, Case C-41/90 Höfner and Elser  [1991] ECR I-1979, paragraph 21, and Joined Cases C-159/91 and C-160/91 Poucet and Pistre  [1993] ECR I-637, paragraph 17). It is clear from established case-law that any activity consisting in offering goods and services on a given market is an economic activity (see Case C-82/01 P Aéroports de Paris  v Commission  [2002] ECR I-9297, paragraph 79; Case C-49/07 MOTOE  [2008] ECR I-4863, paragraph 22; and Case C-437/09 AG2R Prévoyance  [2011] ECR I-973, paragraph 42). Thus, the State itself or a State entity may act as an undertaking (see, to that effect, Case 41/83 Italy  v Commission [1985] ECR 873, paragraphs 16 to 20).
36. By contrast, activities which fall within the exercise of public powers are not of an economic nature justifying the application of the FEU Treaty rules of competition (see, to that effect, Case 107/84 Commission  v Germany [1985] ECR 2655, paragraphs 14 and 15; Case C-364/92 SAT Fluggesellschaft [1994] ECR I-43, paragraph 30; and MOTOE , paragraph 24).
37. In addition, a legal entity, and inter alia a public entity, may be regarded as an undertaking in relation to only part of its activities, if the activities which form that part must be classified as economic activities ( Aéroports de Paris , paragraph 74, and MOTOE , paragraph 25).
38. In so far as a public entity exercises an economic activity which can be separated from the exercise of its public powers, that entity, in relation to that activity, acts as an undertaking, while, if that economic activity cannot be separated from the exercise of its public powers, the activities exercised by that entity as a whole remain activities connected with the exercise of those public powers (see, to that effect, Case C-113/07 P SELEX Sistemi Integrati  v Commission [2009] ECR I-2207, paragraph 72 et seq.).
39. In addition, the fact that a product or a service supplied by a public entity and connected to the exercise by it of public powers is provided in return for remuneration laid down by law and not determined, directly or indirectly, by that entity, is not alone sufficient for the activity carried out to be classified as an economic activity and the entity which carries it out as an undertaking (see, to that effect, SAT Fluggesellschaft , paragraph 28 et seq. and Diego Calì & Figli , paragraphs 22 to 25).
40. In the light of the entirety of that case-law, it must be observed that a data collection activity in relation to undertakings, on the basis of a statutory obligation on those undertakings to disclose the data and powers of enforcement related thereto, falls within the exercise of public powers. As a result, such an activity is not an economic activity.
41. Equally, an activity consisting in the maintenance and making available to the public of the data thus collected, whether by a simple search or by means of the supply of print-outs, in accordance with the applicable national legislation, also does not constitute an economic activity, since the maintenance of a database containing such data and making that data available to the public are activities which cannot be separated from the activity of collection of the data. The collection of the data would be rendered largely useless in the absence of the maintenance of a database which stores the data for the purpose of consultation by the public.