Brussels, 18/10/2013 (Agence Europe) - The German prohibition on the publication of sponsored articles not identified by the term “advertisement” (“Anzeige”) is not, in principle, contrary to EU law. Since the EU legislature has not yet adopted legislative provisions on this point for the written press, the member states retain the power to legislate in this area.
In a ruling in Case C-391/12 on 17 October, the European Court of Justice was answering a query from the German federal court, Bundesgerichtshof, which was dealing with a case in which a newspaper wanted to ban the publication of articles in a small ads paper sponsored by companies that only put “sponsored by...” rather than the term “advertisement” as required under German law. The Bundesgerichtshof wants to know whether the German ban complies with the EU Directive on unfair commercial practices (2005/29/EC). In order to protect consumers and ensure independence of the press, the German law requires newspapers to add the word “advertisement” to any article or publication for which they receive payment, unless it is already evident from the arrangement and layout of the publication that it is an advertisement.
The Court of Justice says that the Unfair Commercial Practices Directive is not intended to protect a competitor of a newspaper publisher who has published sponsored articles which are liable to promote the products or services of the sponsor without the identification as “advertising”. Accordingly, that directive does not preclude the application of national provisions like the German law. It is true that the Unfair Commercial Practices Directive does require advertising undertakings to indicate clearly that they have financed editorial content in the media where that content is intended to promote their products or services. If that is not clearly indicated, the sponsor is engaging in an unfair - and therefore prohibited - commercial practice. As a rule, however, that prohibition does not apply to the publisher who publishes the sponsored article. It is only when the publisher has acted in the name of and/or on behalf of the sponsor ? which is not the case here ? that the publisher would also be covered by that obligation provided for by the Directive.
The Court of Justice points out that although the EU legislature has, in another directive (2010/13/EC), laid down obligations for audiovisual media providers when their services or programmes are sponsored by third-party undertakings, it has not yet adopted this kind of legislation for the written press. Accordingly, the member states retain the power to impose obligations on newspaper publishers to indicate when editorial content has been sponsored, whilst complying however with the provisions of the Treaty, in particular those relating to the freedom to provide services and freedom of establishment. (FG/transl.fl)