The distribution of the advertisement "Einkauf Aktuell" by Deutsche Post AG is not objectionable under competition law because it contains editorial contributions. This was decided by the First Civil Senate of the Federal Court of Justice.
The defendant is Deutsche Post AG, whose largest single shareholder with a share of 30.5% is the Kreditanstalt für Wiederaufbau, which is owned by the Federal Government and the Federal States. The defendant distributes the weekly advertisement "Einkauf Aktuell" to all households via its delivery staff, mainly in conurbations and large cities. In addition to the television programme, this advertisement also contains various sections with editorial contributions. This was objected to by the Federal Association of German Newspaper Publishers and the Federal Association of German Advertising Papers, which, in their action based on the Unfair Competition Act, objected to the fact that the defendant's advertising programme contained such editorial content; this was contrary to the requirement that the press be independent of the state and was thus also anti-competitive. The Regional Court dismissed the action. The plaintiffs' appeal was unsuccessful. The Federal Supreme Court confirmed this decision.
According to the Federal Supreme Court, Deutsche Post AG is not an addressee of the requirement that the press be independent of the state, which is derived from freedom of the press, because it is not controlled by the federal government and the Länder. It is true that the state may not operate as a press enterprise either itself or through companies controlled by it. However, the state's 30.5% stake in Deutsche Post, which was brokered by the Kreditanstalt für Wiederaufbau, is not sufficient for such control. In the past years, at least 67% of the shareholders with voting rights were represented at the Annual General Meeting, so that the state shareholding never had a majority at the Annual General Meeting. The other indications put forward by the plaintiffs, such as a possible influence on personnel decisions or the sale of Postbank, cannot justify the assumption of control either.
Judgment of the BGH of December 15, 2011 - I ZR 129/10 - Einkauf Aktuell
Previous instances:
Hamburg Regional Court - Judgment of November 6, 2008 - 315 O 136/08, ZUM-RD 2009, 215
Hamburg Higher Regional Court - Judgment of June 9, 2010 - 5 U 259/08, AfP 2010, 499
Source: Press release of the BGH
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist attorney for information technology law
E-mail: info@goldberg.de
