Winning a high-end litigation case for ProSiebenSat.1 Group before the Highest Administrative Court in Germany



Our Hamburg-based Regulatory and Administrative law team, led by partner Michael Stulz-Herrnstadt and also involving associates Judith Hoffmann and Christoph Engelmann, has won a landmark case concerning regional television commercials for the ProSiebenSat.1 Group before the Federal Administrative Court of Germany (BVerwG) in Leipzig. In the last instance, the Federal Administrative Court concurred with the legal view of the television company: ProSieben is allowed to broadcast regional TV advertising on a national TV channel.

ProSieben plans to replace commercials on cable networks on its nationwide channel with regional TV advertising based on the five so-called five “Nielsen areas” (regions classified on the basis of demographic market research) in order to acquire new advertisers, especially companies with a regional distribution area or sales structure.

ProSieben informed the competent media authority in Berlin-Brandenburg (MABB) of its intention. Based on a decision of the licensing and monitoring commission, ZAK, the media authority maintained that regional TV advertising as part of a nationwide broadcast is not and cannot be covered by the national broadcasting licence. Also in the view of the Administrative Court of Berlin, which ProSieben then appealed to, ProSieben was not entitled to proceed with its plans: according to the latter court, advertising is a component element of the programming, and if a party (only) has a license to broadcast its programmes nationwide, then they are only permitted to broadcast television commercials on a nationwide basis.

After Administrative Court of Berlin followed the media authorities’ view, ProSieben lodged a “leap-frog appeal” at the Federal Administrative Court - and now the court has decided in our client's favour. The Federal Administrative Court followed ProSieben’s legal opinion and annulled the decision of the lower instance. According to the Federal Administrative Court, the provisions of the German broadcasting law are not violated if advertisements are broadcast to a regionally limited distribution area as part of a national TV channel. The subject of the national broadcasting licence is only the editorial content of the station, not the advertising.

The decision is considered to be a landmark judgment, which will have a ground-breaking effect on broadcasting law issues that have now been brought to light as a result of regional distinctions between advertising content in the context of nationwide television programming. The issue of regional TV advertising has been heavily discussed in Germany since 2012.

ProSiebenSat.1 has been advised by the following Bird & Bird lawyers: Partner Dr. Michael Stulz-Herrnstadt; Associates Judith Hoffmann and Christoph Engelmann (all Media/ Public Law Litigation, Hamburg)