Background of the proceedings
The focus of the proceedings before the Federal Court of Justice was the question of whether a district is permitted to publish job advertisements of private companies on its online portal without charging a fee for doing so. The starting point was the lawsuit of a newspaper publisher who saw its freedom of economic activity impaired by this offer. The publisher argued that the free digital offering by the district endangered the functionality of the free press and constituted an unfair interference in the market.
Assessment of the admissibility of municipal information offerings
Independence from the state and the role of the press
The Federal Court of Justice clarified that state or municipal actors are, in principle, required to exercise restraint in the dissemination of information as long as there is a sufficiently functioning private press market. This so-called independence of the press from the state is enshrined as a constitutional requirement in order to enable the press to perform its independent monitoring function. In this context, the court emphasized that a municipality has no duty to provide general information of a commercial or business nature if this function is already fulfilled, for example, by daily newspapers.
Publication of business job advertisements
In the court’s view, the free provision of a digital job market by the district on its website exceeded the permissible scope of public information activity. According to the ruling, the presentation of job advertisements by private companies is not part of the municipal duties related to public services, but rather primarily concerns economic interests that typically fall within the scope of the press sector. The cost-free publication of such advertisements was therefore assessed as an impermissible distortion of competition under competition law.
Implications for the press market and competition law
The decision of the Federal Court of Justice is of significant importance for the distinction between state and private information offerings. It confirms that public institutions may not directly compete with private sector actors in the media sector where this would disturb the balance of the press. This ensures that private media companies continue to be afforded legal protection intended to safeguard competition and the independence of journalistic work.
Additional information
The judgment of the Federal Court of Justice (Case No. I ZR 142/23, published on 25 October 2024) clarifies the requirements for the separation of state and private information interests and provides guidance within the field of tension between municipal public relations and the free press. Publishers and operators of municipal information platforms must in the future closely observe the boundaries of their permissible scope of action—particularly with regard to economic activities such as the publication of job advertisements. Furthermore, with similar cases, further legal developments remain to be seen.
MTR Legal Attorneys has extensive experience in legally classifying the market behavior of public institutions and private media companies. For in-depth questions on the distinction between public and private communication as well as compliance with competition law regulations, we are happy to assist you in the area of Legal advice in competition law.
