McDermott Achieves Victory for ProSiebenSat.1/SevenOneMedia before the ECJ on Regional TV Advertising Ban
Munich, February 11, 2021 – The German prohibition on regional advertising in national TV programs might violate EU law, according to a judgment by the European Court of Justice (ECJ) in the case Fussl Modestraße Mayr GmbH (Fussl) v SevenOne Media GmbH, the marketing company of ProSiebenSat.1 (C-555/19). A McDermott team led by Wolfgang von Frentz represented the TV broadcaster in the case.
According to the German Interstate Broadcasting Treaty (now Interstate Media Treaty) the regional distribution of advertising in a national TV program is prohibited in order to ensure that pluralistic character of the offer of television programs is preserved and local and regional TV broadcasters can benefit from revenues generated by regional advertising. An exception can only be made if the law of the respective Federal State authorizes regional advertising in the context of national broadcasts. The State of Bavaria, where the plaintiff’s advertising was supposed to be broadcast on ProSiebenSat.1, does not make such an exception. As a result, ProSiebenSat.1 refused to broadcast the Fussl commercials in Bavaria.
The fashion company had filed a lawsuit before the Regional Court of Stuttgart which questioned the conformity of the prohibition with EU law.
The ECJ found that a total prohibition on regional advertising on national TV may go beyond what is necessary to preserve the pluralistic nature of TV programme supply. It could also create an unacceptable inequality between national television broadcasters and providers of advertising services on the Internet. The ECJ therefore instructed the Regional Court to ascertain whether the situation regarding national TV broadcasters is significantly different to that of advertising services on the internet in respect of regional advertising.
« What is special about the case is that both parties share the opinion that the prohibition standard of the State Treaty violates European law », McDermott partner Wolfgang von Frentz says. « If the Stuttgart Regional Court upholds the decision, for example, because it sees unjustified unequal treatment of advertisers on TV and the internet, this will be a milestone for the allowance of regional advertising throughout Germany. »
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