When editorial cooperation meets antitrust: A glimpse into the decision of Germany’s Federal Court of Justice

I have been following Funke Mediengruppe’s attempt to gain full control over the “Ostthüringer Zeitung” (OTZ) for a while – after all, it’s not every day that Germany’s Federal Court of Justice (BGH) rules on a newsroom-meets-antitrust case. With its decision of December 18, 2024 (KVZ 5/23), the BGH has now put an end to this legal dispute, which sheds light on the intersection between competition law and media policy.

What happened so far

For those of you who have not been glued to this matter: Back in September 2021, the German Federal Cartel Office (FCO) prohibited Funke from acquiring OTZ. Funke already held 60 % but did not have free rein, thanks to provisions giving the minority shareholder – “Rheinisch-Westfälische Verlagsgesellschaft”– shared control. Funke now sought sole control, effectively folding OTZ into the same corporate structure as its other daily, the “Thüringische Landeszeitung” (TLZ). The FCO found that Funke’s dominance in parts of the German region East Thuringia – particularly Jena and Gera – would be cemented, eroding the last bit of competition. In the FCO’s reasoning, the case was not just about immediate market shares: Editorial plurality factored into the analysis. Even though Funke and OTZ already had certain collaborative arrangements – day-to-day editorial cooperation, shared marketing strategies, etc. – the authority felt that Funke exerting control over the two newspapers under one roof would be a step too far.

From complaint to declared moot

Funke contested the prohibition at the Düsseldorf Higher Regional Court (OLG). While the case was pending, OTZ’s disputed shares were sold to a third party. This acquisition was cleared by the FCO. Thus, the original deal Funke wanted was off the table. Funke then shifted its legal approach: Rather than seeking to overturn the prohibition decision, it tried to get the FCO’s decision declared unlawful.

The OLG rejected this new complaint as inadmissible and declined an appeal, prompting Funke to turn to the BGH.

The BGH decision

In short, the BGH upheld the OLG’s rejection of Funke’s request for a declaratory ruling on the illegality of the FCO’s prohibition. In German administrative and antitrust procedure, an appeal can still proceed after the main conflict has been “resolved” (in this case, because the shares were sold to a third company) if the appellant can show a  “declaratory interest” (caution, German word monster: Fortsetzungsfeststellungsinteresse) – basically, a legitimate interest in having the court declare that the original prohibition was unlawful despite the deal no longer being on the table.

Why did the BGH decide there was no such interest? Here’s the gist:

1. No likely repeat

The court found it highly unlikely that Funke would find itself in the exact same situation again. Because the shares had already been sold to someone else, there was no realistic prospect that Funke could soon attempt (or re-attempt) the same acquisition. In the BGH’s eyes, this eliminated the need to clarify whether the FCO’s earlier prohibition was lawful. If there’s no comparable future transaction looming, there’s no ongoing controversy to resolve.

2. No separate “rehabilitation” interest

Sometimes, a company may argue that a prohibition paints it in a negative light, effectively accusing it of wrongdoing, thus justifying a continued legal battle to “set the record straight.” The BGH said that was not the case here: The FCO’s prohibition did not allege moral fault, nor did it claim that Funke was engaged in intentionally unlawful or “immoral” practices. It merely found that the planned merger would reduce competition. Because there was no stigma akin to wrongdoing, no “rehabilitation” interest (i.e., clearing one’s name) existed.

3. No need to litigate a partial “editorial cooperation” issue

Funke also argued that the FCO’s stance on editorial cooperation could have prejudicial effects for future antitrust scrutiny – especially since the FCO had opined that Funke’s cooperation agreements possibly infringed German competition rules. However, the BGH viewed that argument as targeting a preliminary point within the context of the merger control proceedings. In other words, the FCO’s discussion of editorial cooperation was a reason for disallowing the acquisition, not a stand-alone decision or penalty against Funke’s editorial arrangements. Since the question was only part of the reasoning and not the core subject of the final prohibition, the BGH declined to issue a declaration on it. If Funke wanted clarity on that editorial cooperation, it could directly seek a decision from the FCO.

Hence, the BGH concluded that Funke could not show a valid interest in having the prohibition formally declared unlawful, after the shares had been sold and the original acquisition plan was off the table. No matter how interesting the editorial cooperation angle was – and it is indeed interesting from a competition-law perspective – Funke’s complaint did not provide a basis for the BGH to delve deeper.

Political and democratic undercurrents

Media mergers always come with a political twist in Germany, which has a deep historical sensitivity to concentrated media power. The concept of “editorial plurality” is more than a buzzword – it is a foundational principle that goes hand in hand with democratic values. The FCO, reflecting that mindset, took pains to frame its prohibition as an effort to maintain not just competitive markets, but also a diverse range of voices. While the BGH never tackled that issue head-on, it is clear that these cases present more than standard market-share calculations: They bring up intangible but potent questions about democracy and free speech.

It is also a reminder to antitrust practitioners, particularly those advising in the media space, that deals must be structured (and, perhaps more importantly, defended) not just by referencing the usual competitive parameters, but also by addressing concerns around how these deals could shape the broader public discourse.

Looking ahead

Where does that leave us? Funke’s case might be closed, but the underlying issues remain. Reduced competition risks homogenizing news content, but shrinking margins push newspaper groups toward consolidation. Hence, regulators and courts will keep testing the boundaries between commercial viability and protecting the public’s right to diverse journalism. And if there’s one certainty, it is that the political dimension – especially Germany’s aversion to uniformity of opinion – will continue to shape how competition law treats media deals.

I, for one, will keep a close watch on how these questions evolve – and how regulators, courts, and politicians respond.

Photo by Utsav Srestha on Unsplash