Antitrust Lawyer Blog Commentary on Current Developments

GERMAN FEDERAL SUPREME COURT REFERS THE BKARTA’S SPRINGER/PROSIEBEN-SAT1 MERGER PROHIBITIONDECISION BACK TO THE HIGHER REGIONAL COURT D

In a recent judgment dated September 30, 2007, the Federal Supreme Court held that even after parties abandon their merger plans due to a prohibition decision by the German Federal Cartel Office (“BKartA”), German courts hold jurisdiction to rule on the question as to whether the BKartA was right to prohibit the proposed merger.

The parties do, however, need to demonstrate a special interest in such a court review. The Federal Supreme Court acknowledged that such an interest arises in particular if the purchaser is likely to be confronted with similar arguments by the BKartA that led to the relevant prohibition when notifying potential future acquisitions.
In the case under consideration, the BKartA prohibited the proposed merger between the publisher Springer and the TV company ProSieben-SAT1 in 2006. The BKartA believed that the merger strengthened the dominant position of the parties on the German national market for TV advertising, on the readers’ market for newspapers, as well as on the newspaper advertising market.

The proposed merger was abandoned shortly after the BKartA’s prohibition decision. Nevertheless, Springer appealed that decision to the Higher Regional Court D