I OVERVIEW

ICT contributes more to wealth creation in Germany than the traditional technologies of automotive and mechanical engineering. With an annual business volume of approximately €228 billion in 2016, the ICT sector is one of the largest economic sectors in Germany. Constantly growing, it already employs more than 1.1 million people in Germany.2

ICT has become a driving force in Germany's economy, contributing to 4.8 per cent of the national gross value-added services in 2016.3

By focusing on key issues such as convergence, mobility, data protection and internet security, the government has tried to advance the information society through targeted policies to modernise legal and technical frameworks and to promote research and market-oriented development over the past decade. As part of this overall effort, the federal government has adopted specific programmes and strategies tailored to the needs of the ICT sector. On 20 August 2014, it concluded the Digital Agenda 2014–2017, focusing on a strategy for the digital future of Germany,4 which was extended by the Digital Strategy 20255 in 2016. There are also plans to ensure nationwide broadband access with transmission rates of at least 50Mbit/s in rural areas until 2018 through the Netalliance Digital Germany initiative.6 In 2017, the initiative announced Zukunftsoffensive Gigabit-Germany, which aims to establish a nationwide availability of 100MBit/s in a four-phase plan by investing €100 billion in network infrastructure.7 The Digital Agenda further includes themes such as digital security and the Strengthening Industry 4.0 initiative. In addition, data protection and liability within networks are issues in both policy and court decisions.

The question as to whether media convergence as a technological phenomenon will inevitably lead to a convergence in media and telecommunications law is still the subject of lively debate in the political and academic fields.

II REGULATION

i The regulators

Due to the federal policy of considering media as a fourth division of power and a tendency to deregulate and decentralise, there is no single media authority in Germany. All television and radio broadcasters are subject to state control. Public service broadcasters are supervised by internal committees: content-related supervision is carried out by the respective broadcasting council. The respective administrative board, which is appointed by the broadcasting council, supervises all management decisions made by the director.

Private broadcasters, in contrast, are subject to external supervision. The competent authority is the respective state media authority of each German state,8 whose responsibilities – apart from supervision – include granting authorisations and assigning transmission capacities.9 They also have a wide range of powers to supervise broadcasters with, such as warnings, prohibitions, or withdrawals and revocations of licences.10

The state media authorities work together in a committee concerning licensing and supervision as well as in the development of private broadcasting on fundamental questions, primarily with a view to the equal treatment of private TV and radio broadcasters. The goals and remits of this cooperation are laid down in the Contract on the Cooperation of the Media Authorities in the Federal Republic of Germany of 20 November 2013. The focus is on promoting programming diversity, and thus freedom of information and opinion in private television and radio. This involves, in addition to controlling media power by means of licensing limitations and licence monitoring, the promotion of media literacy among viewers and listeners.

The state media authorities are also responsible for the compliance of private TV and radio broadcasts with basic programming principles. They supervise the observance of regulations on advertising limitations, the protection of minors and the protection of pluralism. Their tasks are carried out by several committees.

The main regulator in the area of telecommunications is the federal legislator due to his or her competence regarding the postal system and telecommunications. Important federal laws in the field of telecommunications are the German Telecommunications Act (TKG) and, for telemedia services, the German Telemedia Act (TMG). EU directives and decisions of the European Court of Justice (CJEU) and the Federal Court of Justice (FCJ) have a strong impact on the law in the ICT sector.

The compliance of telecommunications companies with the TKG is monitored by the Federal Network Agency (BNetzA). The Agency ensures the liberalisation and deregulation of the telecommunications, postal and energy markets through non-discriminatory access and efficient use-of-system charges. It is responsible, inter alia, for securing the efficient and interference-free use of frequencies and protecting public safety interests. Apart from regulation, the BNetzA performs a number of other tasks related to the telecommunications market such as administering frequencies and telephone numbers, detecting radio interference, and offering advice to citizens on new regulations and their implications.

ii Regulated activities

Private and public television broadcasting in Germany is governed by the RStV, which outlines the side-by-side existence of public and private broadcasting. The 21st amendment to the RStV came into effect on 25 May 2018.11 Further legal sources, at federal level, are various other interstate treaties, such as the Interstate Treaty on the Protection of Minors in Broadcasting and in Telemedia (JMStV), and at state level, individual state media laws.

All private broadcasters require a licence for the purpose of providing broadcasting services (Section 20(1) RStV). According to Section 20(2) of the RStV, the provider of an electronic information and communications service – if it is categorised as a broadcast – requires a licence as well. If the competent state media authority determines that this is the case, the provider, after being notified of this classification, must at his or her choice either submit a licence application within three months or change the service in a way that it is no longer qualified as a broadcast.

When providing telecommunication or network services, operators have to adhere to the TKG. The law has developed in accordance with European regulations and was implemented in 2004. Since then, further changes have been made (e.g., on data retention). The last amendment came into effect on 9 November 2017 regarding the protection of professional secrecy.

German telecommunications law does not generally oblige telecommunications services or network providers to apply for a licence; however, in accordance with the Access Directive (2002/19/EC), it requires certain providers such as public telecommunications network providers or providers of public telecommunications services to notify the BNetzA when they start to provide the services or the network.12 A notification is not necessary for non-public telecommunications networks or services. It is, however, not unequivocal in each case which services are exempt from a notification. Operators of wireless LAN hotspots that typically use the operator's existing telecommunications infrastructure are arguably not under a duty to notify.13

iii Ownership and market access restrictions

Generally, German law makes no distinction between German and foreign nationals regarding investments or the establishment of companies. However, it provides for certain restrictions on foreign capital and investments. The German Federal Ministry of Economics and Technology (BMWi) may prohibit certain acts that might interfere with German or foreign interests according to Section 4 of the Foreign Trade Law (AWG).14

Owing to the security-related aspects of telecommunications services, the TKG imposes certain obligations on telecommunications service providers and network operators. Agreements relating to telecommunications services and network access can be negotiated freely (e.g., access, payment terms, currency and billing) with providers and operators, unless one party has significant market power (in which case, price terms and access obligations are regulated by the TKG; a provider with significant market power is not able to choose its customers freely).15

The RStV contains special ownership control provisions16 that are designed to achieve media-plurality objectives. These rules apply in addition to the general merger control regime under German and European competition law and are administered by the Commission on Concentration in the Media.

Section 11d (2) No. 3 RStV further states that public broadcasting companies are not entitled to offer non-broadcasting-related print media. Criteria to evaluate content are to what extent the offer meets a democratic, social and cultural need of society, whether the offer will contribute to journalistic competition and the financial costs. Since 2012, proceedings concerning the Tagesschau-App have been ongoing. Publishing houses claimed that the Tagesschau-App provides a high amount of non-broadcasting-related textual content and therefore has a competition-distorting effect in terms of Section 11d (2) No. 3 RStV in conjunction with Section 4 No. 11 Act against Unfair Competition (UWG) (previous version). On 30 April 2015, the FCJ held that not only the concept of the app has to comply with the RStV, but also the specific content, which is subject to full judicial review.17 If broadcasting and non-broadcasting elements are implemented, it is necessary to determine the focus. On 30 September 2016, the Higher Regional Court of Cologne came to the conclusion that the Tagesschau-App content on the relevant day was not sufficiently broadcasting-related but equivalent to print media and hence not permitted under Section 11d (2) No. 3 RStV.18 In 2018, the Federal Court of Justice (BGH) did not accept the appeal for the decision, ultimately bringing the case before the Federal Constitutional Court (BVerfG).19

iv Transfers of control and assignments

The German merger control provisions are enforced by the Federal Cartel Office (BKartA) in Bonn. The current legislation can be found in Chapter VII of the Act Against Restraints of Competition (GWB), which deals with the control of concentrations affecting the German market. In addition, Section 101 et seq. of the Treaty on the Functioning of the EU and the EC Merger Regulation20 apply.

The filing of merger notifications in Germany is mandatory if the turnover thresholds according to Section 35(1) of the GWB are met and none of the de minimis exemptions21 applies. If the statutory conditions for prohibition are fulfilled, the BKartA will prohibit the merger or order the divestment or disposal of certain assets of a completed merger.

Mergers that are subject to merger control may not be completed before either the BKartA has cleared the transaction or the relevant waiting periods of one month (first phase) or four months (first and second phases together) after submission of a complete notification have expired without the BKartA having prohibited a transaction.

There are no legal deadlines for a notification of a concentration, but notifiable concentrations must not be completed before clearance. Therefore, it is advisable to submit a notification well before the envisaged completion date. It is possible to file a pre-merger notification even prior to the signing of the transactional documents. Furthermore, parties should not forget to submit the mandatory post-completion notice to the BKartA, which needs to be filed without undue delay following completion of the transaction.22 In principle, all parties involved in a merger are responsible for filing.

Submission of an incorrect or incomplete filing, failure to submit a post-merger completion notice, or cases of incomplete, incorrect or late notices, constitute administrative offences and can lead to a fine of up to €100,000.

After the ninth revision to the GWB, which came into effect on 9 June 2017, the BKartA can now also consider services provided without remuneration and scaling effects in its assessment of market share or market power, and the threshold for merger control is now a transaction value of €400 million.23

III TELECOMMUNICATIONS AND INTERNET ACCESS

i Internet and internet protocol regulation

All IP-based services are regulated under the TMG, adopted on 18 January 2007 and last amended on 28 September 2017. Commercial rules for telemedia are covered in the TMG, while aspects relating to journalistic content are regulated in a specific section of the RStV24 and the JMStV. Telemedia services are permission-free and generally do not need to be registered.

Telecommunications services and telemedia services are mutually exclusive; therefore, telecommunications are excluded from the scope of the TMG. In practice, the distinction is often difficult to make. Moreover, the regulatory structure of telemedia services oscillates somewhere between the unregulated press and the framed supervision the television and radio broadcasters are under. The state media authorities are also regulators of telemedia services.

ii Universal service

Germany has good broadband penetration that compares decently against international levels. Based on the currently accepted broadband definition of at least 1Mbit/s, penetration amounts to approximately 99.9 per cent of German households. More than 76 per cent of German households currently have broadband access with transmission rates of at least 50Mbit/s. While the development of LTE (3.9G, often referred to as 4G) only began in 2010, 96.5 per cent of German households already had LTE access in 2017.25 In November 2014, the first mobile provider supplied LTE Advanced (4G, up to 500 Mbit/s) in a few areas, followed by another provider in the second quarter of 2015. By 2017, almost all larger cities were supplied with LTE Advanced, and since mid-2018, LTE Advanced Pro with up to 1,000Mbit/s is already available in some areas.26

The federal government intends to give a further boost to the development of the broadband network by, for example, capitalising on synergies in the construction of infrastructure, using the digital dividend27 and formulating regulations that foster investments. Various initiatives exist at the federal, state and local levels: especially worth mentioning are the Digital Agenda 2014–2017, the National Digital Summit,28 the German broadband initiative29, the Netalliance Digital Germany initiative and Zukunftsoffensive Gigabit Germany, whose objective is to ensure nationwide broadband access with transmission rates of at least 100Mbit/s until 2025.30

Moreover, the federal government encourages projects to pursue industry solutions. For example, small and medium-sized telecommunications companies can borrow funds on privileged terms and with adequate risk pricing through the corporate financing programme of Germany's state-owned development bank.31

In any event, the existing federal and state loan guarantee scheme is generally available to companies in the telecommunications sector to prevent economically desirable broadband projects from failing due to a lack of suitable finance. With these programmes, the federal government and federal states assume up to 90 per cent of the risk of default for project financing.32

White areas (i.e., those rural areas in Germany that still lack high-speed internet connections) are shrinking rapidly, partly due to ongoing investment by the network operators. The reduction has also largely been achieved thanks to the hosting of action programmes offered by the federal states, local authority broadband initiatives in those areas, and the nationwide activities of associations such as the German Association of Internet Enterprises,33 the Association of the Providers of Telecommunications and Value-Added Services34 and the Association of Towns and Municipalities.35

The government's policy is to actively encourage people to use the internet and to help them acquire skills in the areas of new media by, inter alia, providing governmental services such as e-government and e-justice electronically, and the implementation of the De-Mail Act in 2011.36

iii Restrictions on the provision of service

The BNetzA is responsible for ensuring broadband network owners comply with the TKG.37 Whereas, until recently, the subject of net neutrality appeared to be of no major concern to the German and the European legislators – the German legislator in particular trusted that existing competition would ensure neutral data transmission on the internet and other new media – the subject has now gained considerable attention. The amendment of 3 May 2012 of the TKG introduced the concept of net neutrality.38 The federal government is authorised to draft a regulation that sets out the requirements for non-discriminatory data transmissions, and non-discriminatory access to content and applications, to preclude an arbitrary deterioration of services and an unjustified deceleration of data traffic.39 Two draft regulations proposed by the BMWi have not yet been passed. On a European level, the European Commission published its legislative plans for net neutrality on 12 September 2013 (the Connected Continent legislative package),40 and these have come to fruition. Article 3 of Regulation 2017/2120/EC now provides, inter alia, that providers of internet access shall treat all traffic equally, but permits reasonable traffic management measures provided these are transparent, non-discriminatory and proportionate, and are not founded on commercial considerations. Further, the Body of European Regulators for Electronic Communications is charged with issuing guidelines for the implementation of the obligations of national regulatory authorities (Article 5 (3)).

Following the EU Directive concerning Unfair Business-to-Consumer Commercial Practices,41 the legislator enacted extensive provisions regarding unsolicited calls, emails and text messages in the UWG. Making first contact with consumers by such measures requires the explicit approval of the consumers. Fines can be as high as €300,000.42

Following roaming charges being reduced significantly in recent years, the European Parliament passed a regulation on 27 October 2016 abolishing all roaming charges for calls, SMS and data use in the EU area, which has been in effect since 15 June 2017.43

iv Security

On 14 August 2009, the Parliament passed a new law on the federal authority for IT security (BSIG),44 which came into force on 20 August 2009. A major amendment has been made by the Law on IT Security from 25 July 2015, aiming at an improvement in the IT security of critical infrastructure. The latest amendment has been made by the law on modernising the scale of fees and charges, having become effective on 23 July 2016. Parts of the BSIG strengthen the position of the Federal Office for Information Security (BSI) as described below, while other sections impose obligations on private entities maintaining critical infrastructure that are relevant for common welfare.

The BSI is a superior federal authority overseen by the Federal Ministry of the Interior with wide-ranging tasks of threat prevention in IT systems. According to Section 3 of the Law, its tasks include developing criteria, procedures and tools to test and evaluate the security of information technology systems and components. Therefore, the BSI is the central reporting office for disruptions and attacks on IT systems in private enterprises, using the information submitted by private entities to evaluate them and summarising them in reports that are then provided to the enterprises. The BSI now also functions as the central authority on IT issues in relation to foreign institutions.

The BSIG especially imposes obligations on private enterprises to safeguard IT security, such as the duty to report disturbances in IT systems to the BSI. Private enterprises that are subject to these obligations are, in particular, operators of critical infrastructure in the energy, IT, telecommunication, transport, health, water, nutrition, finance and securities sectors. Within two years of the BSIG coming into force, they had to upgrade their IT systems to make them state-of-the-art, and from then on must prove their compliance with the above-mentioned obligations once every two years through security audits or certificates.45 In the future, they will also have to establish a contact centre to exchange information with the BSI.46 Operators of telecommunication services now have the duty to inform their customers of any IT security risk, and to provide information on solutions for these problems.47 Telemedia services operators must now ensure that their users are protected from attacks on IT security through state-of-the-art technical and organisational means.48

On the EU level over the past few years, the European Commission has adopted several measures to prepare Europe against cyber incidents. The Directive on Security of Network and Information Systems (NIS Directive) was adopted by the European Parliament on 6 July 2016 and is the first EU-wide legislation on cybersecurity.49 It includes measures to ensure a high common level of network and information security across the EU. The NIS Directive was implemented into German law on 29 June 2017.50

Privacy and consumer protection

To better protect the privacy of individuals against the intrusions of modern data processing, in a 1983 decision, the Federal Constitutional Court developed the notion of an individual's right to decide how his or her data is to be used.51 This right means that it is up to each individual to determine what and how much personal information he or she would like to reveal. This right to privacy is an element of the general right to free development of one's personality, which is protected under Article 2(1) in conjunction with Article 1(1) of the German Constitution. The collection, processing and use of personal data are governed by the German Federal Data Protection Act (BDSG) and state laws, supplemented by the TMG. The BDSG applies to federal public authorities, and to non-public entities such as corporations.

Every private organisation is generally required to ask a person's consent if it would like to collect, store or process personal data, unless such collection, storage or processing is permitted under a specific section of the BDSG or any other law. Such exception applies, for example, if the data subject is already aware of such collection or storage from other sources, or if the data is necessary for the performance of a contract with the relevant person. If a body responsible for processing data harms a data subject by unlawfully or incorrectly collecting, processing or using such person's data, and in doing so failed to act with due care, that body is liable for damages.

Individuals may request information from public and private organisations about stored personal data and the reason for storing these data. They may also request the deletion or blocking of data if unlawfully stored or no longer needed.

Data protection is supervised by BFDI, the Federal Data Protection Officer, whose position was strengthened by a Law of 25 February 2015 amending the BDSG.52

With the new General Data Protection Regulation further strengthening individual rights and meeting the challenges of globalisation and new technologies, the BDSG was heavily amended and revised with effect from 25 May 2018. The effect of the General Data Protection Regulation was significant, as in some cases violators of the stricter and user-strengthening regulations may be fined up to €20 million or up to 4 per cent of their annual worldwide turnover of the preceding financial year.

In addition, with effect from 1 January 2018, the Network Enforcement Act was implemented to secure and improve the enforceability of penalties against unlawful contact on significant social media platforms. Social network providers are now obliged to combat fake news and hate speech by blocking, and to remove unlawful content. Furthermore, it is required that a transparent, accessible and effective procedure for users to report unlawful content has to be established under which social network providers have to report biannually. Failure to comply with the obligations may result in fines of up to €50 million.

Data retention for the purpose of inner security

Since the BVerfG rendered data retention as intended under the TKG of 2007 to be unlawful,53 the question of whether and to what extent data retention is in line with national and European law has been discussed widely. The CJEU decided similarly that European Directive 2006/24/EC setting out the framework for data retention is invalid.54 After two drafts of a data retention act in 2011 and 2013 were not adopted, the Committee on Legal Affairs of the Parliament presented a recommended resolution55 based on drafts by parliamentary groups and the federal government containing less extensive possibilities to save data for criminal investigations. The Parliament adopted the law on 16 October 2015, and it came into force on 18 December 2016.56 The introduced obligation for data retention had to be met by 1 July 2017. Contrary to media reports, the European Commission announced that it will not take any actions against Germany enacting such law.57

In this context, the BGH nevertheless held that service providers in Germany may store information on IP addresses used by their customers for a period of seven days to enable security measures against cybercrime.58

Protection of children

Youth protection provisions applicable to the media can primarily be found in the Law for the Protection of the Youth (JuSchG) and the JMStV, a reform of which is planned.

The Federal Department for Media Harmful to Young Persons (BPjM) is the authority responsible for protecting children and adolescents in Germany from media that might contain harmful or dangerous content under the JuSchG. The types of media monitored include, inter alia, videos, books, computer games and websites. The BPjM can act only at the request of other administrative institutions, and not on its own initiative. Once an official request has been filed, the BPjM is obliged to process the complaint. Possible measures in the event of a violation are a prohibition on publication, blocking the provider and fines of up to €500,000.

The JMStV forms the legal basis for assessing content distributed in broadcast or media services. The compliance of broadcast and media services with the JMStV is controlled by the Commission for the Protection of Minors in the Media (KJM). The JMStV distinguishes between illegal content and content that impairs the development of minors: illegal content must not be distributed via broadcasting or media services. Content that is rated as impairing the development of minors (e.g., a severe depiction of violence) is subject to access restrictions. In the event of a breach of the provisions of the JMStV, the KJM decides on the sanctions to be imposed against the respective media content provider. The measures depend on the severity of the breach, and can range from a complaint against the content provider to fines. The issue may even be handed over to the State Prosecutor.

As of 27 January 2015, new offences to prevent child pornography were implemented under the German Criminal Code (StGB). Cyber-grooming (i.e., exerting influence over children via information or telecommunication technologies to prepare them for acts of sexual abuse) is now a criminal offence (Section 176 (4) StGB).

IV SPECTRUM POLICY

i Development

Originally, frequencies in Germany were used – with a few exceptions – by Germany's federal mail service, Deutsche Bundespost. Since 1996, however, the markets for network and telephony have been fully liberalised.

Today's development goes hand in hand with the population's increasing demand for mobile communication services. Not least because of the new technical possibilities opened up by, inter alia, UMTS and LTE, demand for more bandwidth will continue to rise in line with increasing mobility. Growing demand and technological innovation both call for the availability of an adequate frequency spectrum. The development does not end here; the next generation of mobile network – 5G – is already being developed. In addition to the University of Technology Dresden working on a 5G project,59 the government is also focusing on 5G as part of the Digital Agenda, and is endeavouring to bring Industry 4.0 and the IoT (i.e., networks of physical objects with embedded computer technologies) to the next level.

ii Flexible spectrum use

The use of a spectrum requires its prior allocation.60 The TKG states that the allocation of spectra shall be regulated by a Spectrum Regulation, and requires the Federal Council's consent.61 Based on the allocation of frequencies and the specifications set out in the Spectrum Regulation under Section 53 of the TKG, the BNetzA shall divide the spectrum ranges into spectrum uses and related terms of use.62 Spectra for wireless access to telecommunication networks must be assigned in a technologically and service-neutral manner.63

The TKG provides the framework for a flexible use of allocated spectra. Owners of an allocated frequency have the possibility to trade their frequency, and to let third parties use their frequency, for example, by way of a lease, co-use or in the form of a joint use via spectrum pooling. It is necessary, however, that the BNetzA releases such forms of use for flexible use and specifies the corresponding conditions.64

iii Broadband expansion through spectrum auctions

A few rural areas in Germany still lack high-speed internet connections. The federal government plans to invest €2.7 billion into expanding broadband networks, of which €1.33 billion was earned through the last auction of mobile spectra.65 However, it also concentrates on the development of the broadband network towards a fibre-optic network with planned investments of €100 billion by 2025.66

If the BNetzA finds that the number of available spectra is not sufficient for their allocation, it can order that the allocation of frequencies be preceded by a procurement procedure.67 Often, the procurement is held in the form of a spectrum auction, which is organised by the BNetzA.68

On 19 June 2015, the latest auction of mobile broadband spectrum ended following 181 bidding rounds within 16 days. After the merger of Telefónica and E-Plus in the summer of 2014, only three operators (Telefónica, Telekom and Vodafone) were allowed to bid: no new entrants were admitted. The auction of frequencies in the fields of 700MHz, 900MHz, 1,500MHz and 1,800MHz aggregated a total amount of about €5 billion. The BNetzA imposed rather strict requirements on the auction. For example, the right to use frequency includes, inter alia, an obligation to provide internet access to 98 per cent of the population.69

The BNetzA announced that the auction of the 2GHz (UMTS) and 3.4 to 3.7GHz (5G) frequencies is planned for early 2019.70

V THE YEAR IN REVIEW

Significant legislative changes include the General Data Protection Regulation, which primarily aimed to give control to citizens and residents over their personal data and to simplify the regulatory environment for international business by way of harmonising national legislation. It led many companies and websites to change their privacy policies and website features to comply with the new requirements. Given the impact of the changes, the European data protection standards are used as a global baseline.71

While the German Network Enforcement Act was highly debated, its practical impact remains questionable, and the administrative office only registers few complaints.72 The law has also been challenged before the Federal Constitutional Court for its possible violation of constitutional rights.73

In a relevant decision, the Federal Court of Justice clarified the obligation of search engine providers regarding personal rights violations. It was stated that there is no obligation for a search engine provider to verify, before displaying a search result, whether the content found by a search algorithm contains personal rights violations. It is solely necessary for the search engine provider to react accordingly if he or she receives a clear indication of an obvious and clearly recognisable violation of the constitutional right of privacy.74

VI CONCLUSIONS AND OUTLOOK

The ICT sector in Germany is highly important and fast-growing, entailing a fast-paced legal and policy environment.

Convergence presents an abundance of challenges for policymakers, industry and society. Cooperation on a European and global level is vital for most German ICT policy issues, including telecommunication and frequency policies, ICT research, anti-spam measures as well as consumer, copyright and youth protection in the context of new media.


Footnotes

1 Christian Engelhardt is a counsel at Latham & Watkins LLP. Previous versions of this chapter were authored by Gabriele Wunsch and Zahra Rahvar and co-authored with Latham & Watkins associate Laura Johanna Reinlein. The author would like to acknowledge the contributions of Stefan Papastefanou, legal trainee at Latham & Watkins LLP, for his assistance in updating this chapter.

2 www.bmwi.de/Redaktion/DE/Artikel/Branchenfokus/Wirtschaft/branchenfokus-informationstechnik-und-telekommunikation.html; the German ICT industry is Europe's largest ICT market and the fifth-largest worldwide.

6 The Netalliance platform for innovation and investment is formed by the government and ICT companies. It commenced work in 2014 under the guidance of Alexander Dobrindt, the Minister for Transport and Digital Infrastructure (https://www.bmvi.de/DE/Themen/Digitales/Breitbandausbau/Netzallianz/netzallianz.html).

8 Several states have joint media authorities, such as Berlin and Brandenburg as well as Hamburg and Schleswig-Holstein.

9 Section 50 et seq. of the Inter-State Broadcasting Treaty (RStV).

10 Section 38(2) of the RStV.

12 Section 6 of the TKG.

14 The AWG was last modified and July 2017 to include further criminal offences.

15 See Sections 21 and 28 of the TKG.

16 Section 25 et seq. of the RStV.

17 BGH GRUR 2015, 1228 et seq.

18 OLG Köln, 6 U 188/12 (30 September 2016).

19 MMR-Aktuell 2018, 402395.

20 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings.

21 Two de minimis exemptions apply under the following conditions:

aone party to the merger achieved less than €10 million turnover during the preceding fiscal year (in the case of the target including the seller and all its affiliates, provided that the seller controls the target and, in the case of the acquirer, including all its affiliates) (Section 35, Paragraph 2); or

bthe relevant market (which must have been in existence for at least five years) had a total annual value of less than €15 million in the previous calendar year (de minimis market clause, Section 36, Paragraph 1).

23 Cf. Section 18 (3a) and Section 35 (1a) GWB; cf. also Seeliger/deCrozals, ZRP 2017, 37.

24 Section 54 et seq. of the RStV.

27 That is digitisation ending up in freeing up spectrum and usually resulting in its reallocation.

28 The next National Digital Summit will take place in Nürnberg in December 2018: see www.bmwi.de/DE/Themen/Digitale-Welt/Digitale-Agenda/nationaler-it-gipfel.html. Subjects of the IT Summit will be closely related to those of the Digital Agenda. In 2016 digital education will be a main subject.

30 The Netalliance Digital Germany initiative started on 7 March 2014: www.bmvi.de/DE/DigitalesUndRaumentwicklung/DigitaleInfrastrukturen/Netzallianz/netzallianz_node.html; www.bmvi.de/SharedDocs/DE/Artikel/DG/breitbandstrategie.html. The Federal Ministry for Transport and Digital Infrastructure will further develop its broadband portal, www.zukunft-breitband.de. Apart from the annual Broadband Atlas and best-practice examples, this portal also includes checklists for local authorities and information on financial support.

36 The Parliament passed an e-government statute, which came into effect on 1 August 2013: see www.bmi.bund.de/DE/Themen/IT-Netzpolitik/E-Government/E-Government-Gesetz/e-government-gesetz_node.html. This statute facilitates electronic communication with administrative authorities. Furthermore, the German legislator adopted an e-justice statute that will enable electronic communication with all courts in Germany from 2020 onwards. As of 2022, it will be mandatory for lawyers to communicate with the court by certain electronic means: see dipbt.bundestag.de/dip21.web/bt.

37 See Section 126 et seq. of the TKG.

38 Sections 2(2) and 41a of the TKG.

39 Section 41a(1) of the TKG.

41 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market.

42 Section 20(1) and (2) UWG.

44 Law on the Federal Office for Information Security.

45 Section 8a of the BSIG.

46 Section 8b of the BSIG.

47 Section 109a(4) of the TKG.

48 Section 13(7) of the TMG.

50 www.eur-lex.europa.eu/legal-content/DE/TXT/PDF/?uri=CELEX:32014R0910&from=DE. Gesetz zur Umsetzung der Richtlinie (EU) 2016/1148 des Europäischen Parlaments und des Rates vom 6 Juli 2016 über Maßnahmen zur Gewährleistung eines hohen gemeinsamen Sicherheitsniveaus von Netz- und Informationssystemen in der Union, BGBl, 2017, 1885.

51 Judgment of the BVerfG of 15 December 1983, 1 BvR 209/83 et al., BVerfG collection, 65,1(41).

53 Judgment of the BVerfG of 2 March 2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08, BeckRS 2010, 46771.

54 Judgment of the CJEU of 8 April 2014, C-293/12 and C/594/12, BeckEuRS 2014, 393023.

55 http://dip21.bundestag.de/dip21/btd/18/063/1806391.pdf.

57 Becklink 2001085 of 16 September 2015.

58 Judgment of the BGH of 3 July 2014, III ZR 391/13, BeckRS 2014, 14643.

60 Section 55(1) of the TKG.

61 Section 53(1) of the TKG.

62 Section 54(1) of the TKG.

63 Section 54(2) of the TKG.

64 Section 62(1) and (2) of the TKG; also see Scherer/Heinickel, NVwZ 2012, 585 (591f).

67 Section 55(10) of the TKG.

68 Section 61 of the TKG.

74 BGH, NJW 2018, 2324.