On 19 July 2010, the German Federal Cartel Office
("FCO") decided to close the proceedings against the
German branch of the US agency AP and the German news service ddp
for not notifying their merger to the FCO.
The merger between AP and ddp took place in December last year
and saw the owners of ddp taking over AP's German business.
At that time, the transaction was not notified to the FCO.
The FCO only opened the proceedings against DPA and AP after
a complaint by the competitor DPA in April 2010 (for more details
Community Week issue 466).
The FCO has now decided that AP and ddp were not required to
notify their merger as the turnover thresholds for the
applicability of the German merger control were not met. Even
though the FCO concluded that the transaction between two press
agencies is to be regarded as a transaction in the press sector
(i.e. like a transaction between two newspapers), the transaction
was still not notifiable. There is a stricter merger control
system in Germany for transactions in the press sector where
special rules regarding the turnover calculation apply.
According to sec. 38 para. 3 of the German Act against
Restraints of Competition ("ARC") the turnover is
multiplied by a factor of twenty in order to determine whether the
thresholds for the applicability of the German merger control
system as set in sec. 35 ARC are met.
However, in the present case, the thresholds for the
applicability of the German merger control system were not met,
even on the basis that the turnover of AP and ddp generated by
typical press agencies activities (e.g. daily news services) were
multiplied by a factor of twenty.
This decision shows that the FCO considers transactions in the
press sector carefully and also adopts a broad approach as to
whether undertakings are regarded as active in the press sector
in order to prevent any concentration in the media sector and
to safeguard diversity and pluralism of opinions in Germany.
In this context, another peculiarity of the German legal
system is worth noting - besides the FCO, the German Commission on
Concentration in the Media ("KEK") is also responsible
for national media concentration control in the area of
nationally-transmitted private television.
To view Community Week, Issue 481; 23rd July 2010 in full,
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