Germany: German Federal Supreme Court approves the prohibition of the takeover of the ProSiebenSAT1 group by publishing company Axel Springer AG

On 8 June 2010, the Federal Supreme Court (Bundesgerichtshof) ruled that the prohibition of the merger between the publishing company Axel Springer AG and the television stations ProSieben and -SAT1 was lawful.

In 2006 the German Federal Cartel Office (FCO) prohibited the merger between Axel Springer AG, a leading German media corporation that owns several German newspapers (e.g. "BILD", "Die Welt") and the television stations ProSieben and Sat1. The FCO had concluded that the planned merger would strengthen inter alia the dominant position of the parties on the German television advertising market.

Even though the parties abandoned the merger, Axel Springer AG filed an appeal before the Higher Regional Court of Düsseldorf in order to bring legal certainty to possible future mergers. The Higher Regional Court of Düsseldorf dismissed the appeal as unfounded.

This decision of the Higher Regional Court of Düsseldorf has now been confirmed by the Federal Supreme Court. The Federal Supreme Court confirmed that at the time of the merger filing the German television advertising market was an oligopoly with a market share of more than 80%. This oligopoly consisted of the television station group ProSieben, SAT1, Kabel 1 and N24 and the television stations RTL, VOX and n-tv that belong to the Bertelsmann group. The Federal Supreme Court also confirmed the finding that the concentration would lead to a strengthening of the dominant position of the oligopoly on the television advertising market. The Higher Regional Court of Düsseldorf had based this finding inter alia on the fact a media corporation consisting of Axel Springer AG and the television stations ProSieben/Sat.1 would have had the possibility of offering advertising clients combined offers for television and newspaper advertising and to promote its offers (i.e. television programmes and newspaper content) reciprocally. In particular, ProSieben/Sat.1 television programmes could have had extensive coverage in Axel Springer AG's leading newspaper "BILD".

The exact reasoning of the Federal Supreme Court is unknown as the full text of the decision is not yet available.

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