“Turning Government Data Into Gold”: The Interface Between EU Competition Law and the Public Sector Information Directive—With Some Comments on the Compass Case

Abstract

This short article was triggered by the recently delivered preliminary ruling by the CJEU in the Compass case. The case is important since it raises difficult questions regarding when a public sector body should benefit from the application of EU competition law in general and is especially interesting for those public sector bodies that create the essential information needed for the growing public sector information industry. The main issue discussed in the article is when public sector bodies should be considered “undertakings” under EU competition law. The substantive issue of the case is whether the specific conduct under scrutiny, i.e. the distribution of public sector information for remuneration, is an economic activity or not. In light of the Compass case, the author argues that the underlying doctrine, derived from quite a number of CJEU cases, needs to be narrowed down and tightened so that public sector bodies are only exempted and considered as not conducting economic activities when the scrutinized activity truly constitutes an essential function of the state. The CJEU should thereby refine the current case law regarding the dichotomy between undertakings, which benefit from the application of competition law, and public or private bodies that perform acts of sovereign public power and connected conduct, which do not. EU competition law should prevail if a public sector body or a private body conducts an activity that creates or is conducted on a market, irrespective of whether that body simultaneously conducts a public task, as long as it is not an exercise of public power.