The Antitrust Division of the Federal Court of Justice has decided that the central mandate of the Bundesverband Presse-Grosso to negotiate with publishers on terms for the press wholesale sector does not contravene cartel law. With this decision, the Federal Court of Justice resolved a fundamental issue of the German press wholesalers distribution system, thereby also confirming that the newly introduced section 30(2a) in the last amendment of the Act against Restraints of Competition conforms with European law. Gleiss Lutz extensively advised the Bundesverband Presse-Grosso in the five-year long legal dispute, supporting the amendment of the Act against Restraints of Competition in the process.
Publisher-independent press wholesalers are members of Presse-Grosso in Germany and act as intermediaries in reselling newspapers and magazines to retailers. Presse-Grosso negotiates uniform terms for the sector with the publishers and concludes corresponding industry agreements. As a result, comparable marketing terms and conditions apply nationwide to all press products, allowing for free access to the market and competition between publications in the retail sector.
Hamburg-based publisher Bauer-Verlag had challenged the central mandate in 2010 as an unlawful cartel arrangement, initiating proceedings against Presse-Grosso through its subsidiary Bauer Vertriebs KG. Both Cologne Regional Court and Düsseldorf Higher Regional Court agreed with the publisher. In the appeal brought by Presse-Grosso, however, the Antitrust Division of the Federal Court of Justice has now overturned the Düsseldorf Higher Regional Court’s ruling of 26 February 2014. As a result, Bauer-Verlag’s claim has been rejected, and clarification provided at supreme court level that centrally negotiated industry agreements in the press sector are still admissible.
The Federal Court of Justice emphasized that, pursuant to section 30(2a) Act against Restraints of Competition, the press wholesalers belonging to Presse-Grosso were entrusted with the operation of services of general economic interest within the meaning of Article 106(2) TFEU, .i.e. the nationwide, non-discriminatory sale of newspapers and magazines. Application of other EU rules on competition would prevent the wholesalers from performing their task. According to the court, the legislator’s assessment that application of the rules on competition to the central negotiating mandate would jeopardize the nationwide, non-discriminatory sale of newspapers and magazines is sufficient to this end. As a result, the provisions of competition law only apply to a limited extent to press sales.
Bundesverband Presse-Grosso was advised by Prof. Dr. Rainer Bechtold (competition/antitrust, Stuttgart, meanwhile retired) and Dr. Martin Raible (partner, competition/antitrust, Düsseldorf), who were joined in the appeal proceedings by supreme court lawyer Prof. Dr. Ralph Schmitt.
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