Reference for a preliminary ruling from the Oberster Gerichtshof (Austria), lodged on 21 March 2011 - Compass-Datenbank GmbH v Republik Österreich

(Case C-138/11)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant: Compass-Datenbank GmbH

Respondent: Republik Österreich

Interested parties: Bundeskartellanwalt, Bundeswettbewerbsbehörde

Questions referred

1.    Is Article 102 TFEU to be interpreted as meaning that a public authority acts as an undertaking if it stores in a database (business undertakings register) the information reported by undertakings on the basis of statutory reporting obligations and allows inspection and/or printouts to be made in return for payment, but prohibits any more extensive use?

If the reply to Question 1 is in the negative:

2.    Does a public authority act as an undertaking in the case where, in reliance on its sui generis right to protection as the producer of a database, it prohibits uses which go beyond that of allowing inspection and the creation of printouts?

If the reply to Questions 1 or 2 is in the affirmative:

3.    Is Article 102 TFEU to be interpreted as meaning that the principles laid down in the judgments in Joined Cases C-241/91 P and C-242/91 P RTE and ITP [1995] ECR I-743 and in Case C-418/01 IMS Health [2004] ECR I-5039 ('essential facilities doctrine') are also to be applied if there is no 'upstream market' because the protected data are collected and stored in a database (business undertakings register) in the course of a public-authority activity?

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