The First Civil Senate of the Federal Court of Justice today ruled that the right to information under press law can also be asserted against public limited companies which are active in the area of public services (here: water and energy supply, waste water disposal) and the majority of whose shares are owned by the public sector.
The plaintiff is a journalist. He is working on an article concerning the financing of the SPD's federal election campaign in 2013 and previous state election campaigns of the SPD in North Rhine-Westphalia. In this context, he is investigating whether internet blogs operated in 2013 and 2010, which published contributions and documents supporting the SPD's election campaigns, were financed with public funds.
The defendant is a public limited company that provides water and energy supply services and wastewater disposal. The majority of its shares are held by municipalities. The plaintiff suspects that the defendant indirectly financed the internet blogs by making excessive payments for alleged contractual services to companies associated with the blogs. He has sought information from the defendant regarding the contracts awarded to these companies, the services rendered, and the remunerations invoiced.
The Regional Court dismissed the action. The Higher Regional Court ordered the defendant to provide information starting from 2009. It held that the defendant was obliged to provide information under Section 4 (1) of the North Rhine-Westphalia Press Act (LPresseG NRW). It considered the defendant an authority in the sense of press law because it is controlled by municipal shareholders and used by them to fulfill public tasks in the area of public services. The plaintiff's suspicion that the defendant had covertly financed the SPD's election campaigns through payments to the companies was not unfounded from the outset. The defendant could not refuse to provide information under Section 4 (2) of the LPresseG NRW by invoking protectable business secrets. The right to information was limited to data temporally related to the election campaigns.
With its appeal on points of law (Revision), the defendant sought the complete dismissal of the action. The plaintiff, with his cross-appeal, continued to pursue his request for information regarding contracts awarded by the defendant before 2009.
The Federal Court of Justice rejected the plaintiff's cross-appeal. The defendant's appeal on points of law was only successful insofar as it challenged the order to provide information from 2014 onwards. The Federal Court of Justice considered the defendant an authority obliged to provide information within the meaning of Section 4 (1) of the North Rhine-Westphalia Press Act (LPresseG NRW). The press-law concept of an authority also encompasses private-law legal entities that are controlled by public authorities and used to fulfill public tasks, for instance, in the area of public services. Control in this sense is generally assumed when more than half of the shares of the private-law legal entity are publicly owned. These conditions are met in the present case. The defendant cannot successfully invoke a right to refuse information under Section 4 (2) No. 3 of the LPresseG NRW. The public interest in information pursued by the plaintiff outweighs the interest of the defendant and the affected service providers in keeping contractual terms confidential. Given the proper use of public funds and the political activities of a municipally controlled company, there is a significant public interest in information. However, the right to information only covers the period for which a legitimate journalistic interest exists. In the present case, this is the period from 2009 to 2013.
Judgment of the Federal Court of Justice of March 16, 2017 – I ZR 13/16
Lower Courts:
Regional Court Essen – Judgment of november 14, 2013 – 3 O 217/13, juris
Higher Regional Court Hamm – Judgment of December 16, 2015 – I-11 U 5/14, ZD 2016, 439
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2017
