The Federal Supreme Court (BGH) has ruled that the prohibition of the merger between Axel Springer AG and the TV stations ProSieben/SAT1 was lawful.
At the beginning of 2006 the Bundeskartellamt had prohibited Springer from acquiring shares in the television stations ProSieben and SAT1; after the acquisition Springer would have held all the ordinary shares in ProSieben and SAT1. The Bundeskartellamt had justified the prohibition inter alia on the grounds that, if the transaction had gone ahead, a dominant position of the companies involved in the merger would have been strengthened on the nationwide market for the provision of advertising time in television programmes (television advertising market). A few weeks after the prohibition, the companies involved in the merger declared that they did not want to pursue the project any further.
The appeal nevertheless filed by Springer and initially dismissed as inadmissible by the Düsseldorf Upper District Court was deemed admissible by the Federal Court of Justice in initial appeal proceedings (order of 25 September 2007 - KVR 30/06, BGHZ 174, 179 - Springer/Pro Sieben; press release 136/2007). The Upper District Court then dismissed Springer's application for a declaration that the Bundeskartellamt's prohibition order had been unlawful as unfounded.
The appeal on points of law against this, which was again allowed by the Higher Regional Court, was unsuccessful. The Federal Supreme Court confirmed the decision of the Higher Regional Court that the prohibition of the merger was lawful: The Higher Regional Court had found, without any error of law, that a dominant oligopoly existed on the television advertising market at the time of the proposed merger. This oligopoly had been formed by the broadcasting groups Pro Sieben, SAT1, Kabel 1 and N 24 on the one hand and the channels RTL, VOX and n-tv, which belonged to Bertelsmann AG, on the other hand, and had had a combined market share of over 80%. The Higher Regional Court's prognosis that it was to be expected that the intended merger of Springer and Pro Sieben/SAT 1 would have strengthened the dominant position of this oligopoly on the television advertising market stood up to legal scrutiny.
Order of the Federal Supreme Court of 8 June 2010 - KVR 4/09
Lower court:
OLG Düsseldorf - Order of 3 December 2008 - VI-Kart 7/06 (V)
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
