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Editorial

BGH – Official gazettes featuring editorial content are in violation of competition law

April 2019 - EU & Competition. Legal Developments by GRP Rainer LLP.

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The state and the press are meant to be separate. This also applies to official municipal gazettes. According to the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, these publications may be in breach of competition law if they feature editorial contributions.

Freedom of the press is set out in the Grundgesetz, i.e. Germany’s constitution, also known in English as the Basic Law for the Federal Republic of Germany, and mandates a degree of separation between the state and the press. For this reason, difficulties can arise if official gazettes are not limited to public announcements and instead include editorial contributions concerning local events. We at the commercial law firm GRP Rainer Rechtsanwälte note that this runs the risk of violating the principle of separation of state and press, as both the state and local authorities are prohibited from competing with private publishers.

The BGH has now ruled in a judgment from December 20, 2018 that a local authority is not entitled to distribute a free official gazette throughout the entire area of the respective city if its presentation is similar to that of a press publication and it includes editorial contributions. This was found to be in breach of the principle of separation of state and press (Az.: I ZR 112/17).

In the instant case, a publisher had sued a local authority that had distributed a complimentary official municipal gazette featuring editorial contributions and advertisements. In doing so, the local authority was accused of violating the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Unfair Competition Act, and thus competition law. Like the courts of lower instance before it, the BGH agreed with the publisher’s line of reasoning.

The BGH held that by distributing the complimentary official gazette, the local authority was violating the principle of separation of state and press. It further ruled that this principle is a regulation governing market behavior, and violating this kind of regulation is therefore anti-competitive and justifies injunction suits.

The Court went on to state that for the purposes of assessing specific municipal publications, it is necessary to consider their form and content as well as evaluate them from a holistic perspective. According to the BGH, state publications must be identifiable as such and limited to factual information. Publishing official communications and reporting on the plans of the local administration and the municipal council are acceptable, whereas press-like reporting on social life in the community is not. This was said to be the original and primary purpose of the local press and not the state.

Going forward, local authorities will have to determine precisely whether the reporting in their official gazettes goes beyond the boundaries of what is acceptable before they decide to publish. Lawyers with experience in the field of competition law can offer advice.

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