An extract from The Technology, Media and Telecommunications Review, 12th Edition
With an annual business volume of approximately €281 billion in 2020, the information and communications technology (ICT) sector has not only increased business volume six years in a row; it is also one of the largest economic sectors in Germany, employing more than 1.28 million people in about 102.000 companies.2 ICT has become a driving force in Germany's economy, contributing to 5.1 per cent of the national gross value-added services in 2019.3
By focusing on key issues such as digitalisation, mobility, data protection and cybersecurity, the government has tried to advance the information society through targeted policies to modernise legal and technical frameworks and to promote research and market-oriented development over the past decade. As part of this overall effort, the federal government has adopted specific programmes and strategies tailored to the needs of the ICT sector. In 2014, it concluded the Digital Agenda 2014–2017, focusing on a strategy for the digital future of Germany,4 which was extended by the Digital Strategy 20255 in 2016. Since 2016, the federal government has issued a set of further national strategies that outline a roadmap for digital transformation, such as the 5G Strategy for Germany from July 2017, the 'Action Plan: Digitalisation and Artificial Intelligence in the Mobility Sector' from 2018 and the recently published cybersecurity strategy of Germany 2021.6 Beyond that, ethical aspects in the ICT sector are increasingly moving into the political spotlight.7
As far as media regulation is concerned, it is worth pointing out a fundamental reorientation. The newly enacted Interstate Treaty on Media (MStV) is now also intended to take into account the changed circumstances of broadcasts via the internet. It regulates activities geared to the production or distribution of media content in different ways. With regard to telecommunications, data protection and privacy, the current amendments to the Telecommunications Act (TKG), the Telemedia Act (TMG) and the new Act on Data Protection and Privacy in Telecommunications and Telemedia (TTDSG) are worth mentioning.
Regulationi The regulators
All television and radio broadcasters are subject to state control. Public service broadcasters are self-governing bodies and therefore largely supervised by internal committees: content-related supervision is carried out by the respective broadcasting council. The respective administrative board, which is appointed by the broadcasting council, supervises all management decisions made by the director. External (legal) supervision is carried out by the 16 state governments.8 The competent authority for legal supervision of private broadcasters is the respective state media authority of each German state,9 whose responsibilities include granting authorisations and assigning transmission capacities.10 They also have a wide range of powers to supervise broadcasters, such as warnings, prohibitions or withdrawals and revocations of licences.11
The state media authorities work together in a working group (including various committees) concerning licensing and supervision as well as in the development of private broadcasting on fundamental questions, primarily with a view to the equal treatment of private TV and radio broadcasters (die medienanstalten – ALM GbR).12 The state media authorities are also responsible for the compliance of private TV and radio broadcasts with basic programming principles. They supervise the observance of regulations on advertising limitations, the protection of minors and the protection of pluralism. Their tasks are carried out by several committees.
The main regulator in the area of telecommunications is the federal legislator due to the competence regarding telecommunications. Important federal laws are the TKG and, for telemedia services, the TMG. The compliance of telecommunications companies with the TKG is monitored by the Federal Network Agency (BNetzA). The BNetzA monitors and supervises the markets and infrastructure for telecommunications, post, energy and railways. It ensures the liberalisation and deregulation of the telecommunications, postal and energy markets, for example through the supervision of non-discriminatory infrastructure access. It is responsible, inter alia, for securing the efficient and interference-free use of frequencies and protecting network security. Apart from regulation, the BNetzA performs a number of other tasks related to the telecommunications market such as allocation of telephone numbers.
The Federal Commissioner for Data Protection and Freedom of Information (BfDI) is responsible for the supervision of data protection at telecommunications companies insofar as they provide telecommunications services.13ii Main sources of law
The use and distribution of media and telecommunications are first of all protected by fundamental rights. The Basic Law (GG) guarantees freedom of information, freedom of the press for journalists and publishers, as well as freedom of broadcasting and film (Article 5(1)) and freedom of art (Article 5(3)). Furthermore, the GG guarantees the secrecy of telecommunications (Article 10 (1)). These are not only individual freedoms, but with regard to the press an institution guarantee and with regard to broadcasting a guarantee of existence and development.
Broadcasting law is the responsibility of the 16 federal states. However, the 16 states have agreed on a fundamental treaty regulating the legal framework, the MStV. The MStV replaced the State Treaty on Broadcasting Media (RStV) in 2020, primarily in order to adopt the Audiovisual Media Services Directive 2010/13/EU.
Further legal sources, at the level of the federal states, are various other interstate treaties, such as the Interstate Treaty on the Protection of Minors in Broadcasting and in Telemedia (JMStV) and the Interstate Treaty on ZDF.14
In addition to the content requirements, the transmission of telemedia is regulated in the TMG, which includes in particular the transmission of media via the internet. The TMG is not applicable to individual communications, which are specifically regulated in the TKG.
Telecommunication law lies in the shared competence between the EU and the Member States.15 The EU has issued several regulations and directives relating to telecommunications.16 Germany adopted the most important regulations in particular in the TKG and related ordinances. A major reform of the TKG was adopted in 2021 via the Telecommunications Modernisation Act to meet the EECC requirements. The implementation date of the revised TKG is 1 December 2021.17 The goals of the new TKG include, among others:
- the expansion of very high capacity networks;
- the extension of the TKG scope to interpersonal telecommunications services (such as over-the-top (OTT) services);
- certain amendments to the asymmetric market regulation for companies with significant market power as well as the introduction of a symmetrical regulation;
- enhancement of consumer rights;
- increased security requirements; and
- modernisation of frequency management.
Private and public broadcasting is governed by the MStV, which outlines the side-by-side existence of public and private broadcasting. All private broadcasters require a licence for the purpose of providing broadcasting programmes.18 According to the MStV, broadcasting is a linear information and communication service; it is the provision and dissemination of journalistic and editorial content in moving images or sound along a broadcasting schedule for the general public and for simultaneous reception by means of telecommunications.19 A broadcast programme is a sequence of content arranged in time according to a broadcast schedule.20 These are comprehensively regulated activities, including, for example, streaming content via social media platforms. However, a licence may not be required if the programme reaches or is expected to reach an average of less than 20,000 concurrent users over a six-month period.21
When providing telecommunication services or operating a telecommunication network, operators have to adhere to the TKG. As mentioned above, the new TKG extended its scope: the term telecommunications service now includes internet access services, interpersonal communications services and signal transmission services. The TKG does not generally oblige telecommunications service providers or network operators to apply for a licence; however, it requires them to notify the BNetzA when they start to provide the services or operate the network.22iv Ownership and market access restrictions
German law provides for certain restrictions on foreign investments. The Federal Ministry of Economics and Technology (BMWi) may prohibit transactions that might interfere with German or foreign interests according to Section 4 of the Foreign Trade Law and Section 55 et seq. of the Foreign Trade Law Ordinance. The scope of foreign investment control has developed in past years via the stipulation of a list of particularly sensitive business areas that relate to critical infrastructures23 and that, depending on certain threshold values, explicitly cover specific ICT activities.
As regards telecommunications, the new TKG continues to follow the principle of asymmetrical regulation of companies with significant market power (SMP). The BNetzA has the power to assess whether a company has SMP in a defined market. SMP companies are subject to stricter regulation under the TKG, including non-discrimination obligations, transparency obligations, access obligations, regulation of charges and separate accounting rules. The new TKG has now extended the symmetric regulation that governs companies without SMP. The BNetzA is in the position to impose access obligations on some companies, especially those controlling access to end-users or to networks that are difficult to replicate.
The MStV contains special ownership control provisions24 that are designed to achieve media-plurality objectives. These rules apply in addition to the general merger control regime under German and European competition law and are administered by the Commission on Concentration in the Media.
Since 2012, proceedings concerning the tagesschau-App have been ongoing. Publishing houses claimed that the tagesschau-App provides a high amount of non-broadcasting-related textual content and therefore has a competition-distorting effect. On 30 April 2015, the Federal Court of Justice (BGH) held that not only the concept of the app has to comply with the RStV, but also the specific content, which is subject to full judicial review.25 If broadcasting and non-broadcasting elements are implemented, it is necessary to determine the focus. On 30 September 2016, the Higher Regional Court of Cologne came to the conclusion that the app content on the relevant day was not sufficiently broadcasting-related but equivalent to print media and hence not permitted.26 In 2018, the BGH did not accept the appeal of the decision, ultimately bringing the case before the Federal Constitutional Court (BVerfG) where the legal dispute has now been pending for years.27v Transfers of control and assignments
The German merger control provisions are enforced by the Federal Cartel Office (BKartA). The current legislation can be found in Chapter VII of the Act Against Restraints of Competition (GWB), which deals with the control of concentrations affecting the German market. In addition, Section 101 et seq. of the TFEU and the EC Merger Regulation apply.28
The filing of merger notifications in Germany is mandatory if the thresholds according to Section 35(1) or (1a) of the GWB are met. If the statutory conditions for prohibition are fulfilled, the BKartA will prohibit the merger or issue clearance conditioned on the divestment or disposal of certain assets from the transaction perimeter or merged entity.
Mergers that are subject to merger control may not be completed before either the BKartA has cleared the transaction or the relevant waiting periods of one month (first phase) or up to an additional five months (second phase) after submission of a complete notification have expired without the BKartA having prohibited a transaction.
There are no legal deadlines for a notification of a concentration, but notifiable concentrations must not be completed before clearance. Therefore, it is advisable to submit a notification well before the envisaged completion date. It is possible to file a pre-merger notification even prior to the signing of the transactional documents. In principle, all acquiring parties involved in a merger are responsible for filing.
Submission of an incorrect or incomplete filing, failure to submit a post-merger completion notice, or cases of incomplete, incorrect or late notices, constitute administrative offences and can lead to a fine of up to €1 million or, in the case of companies, up to 10 per cent of their preceding business year's total revenues.
The BKartA can also consider services provided without remuneration and scaling effects in its assessment of market share or market power, and the threshold for merger control is a transaction value of €400 million.29