Within a dispute between two German newspapers the ECJ was again asked to bring clarification over the scope of the Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market (the UCPD).
In the case at hand the publisher of the weekly journal Stuttgarter Wochenblatt brought an action against the publisher of the advertisement journal Good News in relation with the failure of the later to include the term "advertisement" in two articles published in its edition of June 2009. The first article was a report on prominent guests who attended the final game of the season played by a German team and was sponsored by a trader of oils for cars. The second article was an editorial snapshot of the city of Leipzig sponsored by a local undertaking.
Within this context, the ECJ was asked to clarify whether the requirement of the German Land Press Law (par. 10) which imposes publishers to include the word "advertisement" in articles for which they receive remuneration is compliant with the UCPD.
Stuttgarter Wochenblatt alleged that, since they are sponsored, the articles are publications for remuneration within the meaning of the German Land Press Law and must therefore be indicated as "advertisements". Good News argued that the concerned provision of the German Land Press Law infringes the UCPD and therefore said national provision may not be invoked in the case.
The Court replied that the UCPD is not applicable in such a case.
Firstly, the Court observed that the articles in question are rather informative and descriptive editorial content and do not promote the newspaper but rather products and services of third parties. Having regard to the fact that the concerned consumer in the case at hand is the reader of the newspaper, the articles in question are not liable to significantly alter its decision to purchase the newspaper and therefore such a publishing practice cannot be classified as a commercial practice within the meaning of the UCPD.
Secondly, the Court ruled that, although the UCPD requires advertisers to clearly indicate any financed editorial content which promotes products and services, this is however not applicable to sponsored articles. The Court considered that the UCPD is not intended to require newspaper publishers to prevent possible unfair commercial practices by advertisers and the Directive may only be applicable to newspaper publishers in relation to the promotion of their own products (e.g. by offering a chance of winning a prize in a competition).
Lastly, having regard to the fact that the UCPD is not applicable, the Court seeks for the EU legislation governing such a case. The Court observes that the obligations for newspaper publishers under par. 10 of the German Land Press Law corresponds in essence to the obligations imposed through the Audiovisual Media Services Directive (2010/13/EU) on media providers when their programs are sponsored by third-party undertakings. However, said Directive is limited the the audiovisual field and may not be extended to the written press. In this regard, since the European Union legislature has not yet adopted this kind of secondary legislation for the written press, Member States remain entitled to impose obligations on newspaper publishers to indicate when the 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.
