The Technology, Media and Telecommunications Review: Germany

Overview

With an annual business volume of approximately €260 billion in 2018, the ICT sector did not only increase business volume by 3.6 per cent compared to 2017; it is also one of the largest economic sectors in Germany, employing already more than 1.2 million people.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 2018.3

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. In the current coalition agreement, politicians have set the goal of supplying the whole of Germany via gigabit networks by the end of 2025.6

The Digital Agenda further includes topics such as digital security and the Strengthening Industry 4.0 initiative. Beyond that, ethical aspects in the ICT sector are increasingly moving into the political spotlight.7

Regulation

i The regulators

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, 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.11

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 the competence regarding telecommunications. Important federal laws are the Telecommunications Act (TKG) and, for telemedia services, the Telemedia Act (TMG).

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.

The Federal Commissioner for Data Protection and Freedom of Information (BfDI) is responsible for the supervision of data protection at telecommunications companies insofar as they provide telecommunications services.12

ii Main sources of law

The use and distribution of media and telecommunications are first of all protected by fundamental rights. The Basic Law (GG) guarantees the freedom of information, the freedom of the press for journalists and publishers, as well as the freedom of broadcasting and film (Article 5(1)) and the freedom of art (Article 5(3)). Furthermore the GG guarantees the secrecy of telecommunications.

Broadcasting law is the responsibility of the 16 federal states. They have agreed on a fundamental treaty regulating the legal framework, the State Treaty on Broadcasting (RStV). The 22nd amendment to the RStV came into effect on 1 May 2019.13 However, the RStV will be replaced by the State Treaty on Media (MStV), which has already been passed. This serves primarily to adopt the Audiovisual Media Services Directive 2010/13/EU and is scheduled to come into force at the end of 2020.

Further legal sources, at the level of the federal states, are various other interstate treaties, such as the Interstate Treaty on the Protection of Minors in Broadcasting and in Telemedia (JMStV).

In addition, broadcasting is regulated in the TMG, which includes in particular the transmission of media via the internet.

Telecommunication law lies in the shared competence between the EU and the Member States.14 The EU has issued several regulations and directives relating to this matter.15

Germany adopted the most important regulations in particular in the TKG. The next reform of the TKG will be comprehensive and will adopt the EECC requirements.

iii Regulated activities

Private and public television broadcasting is governed by the RStV, which outlines the side-by-side existence of public and private broadcasting. All private broadcasters require a licence for the purpose of providing broadcasting services.16 According to the RStV, the provider of an electronic information and communications service – if it is categorised as a broadcast – requires a licence as well.17 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 TKG does not generally oblige telecommunications services or network providers to apply for a licence; however, it requires them to notify the BNetzA when they start to provide the services or the network.18 It is not unequivocal in each case which services are exempt from a notification.19

iv Ownership and market access restrictions

German law provides for certain restrictions on foreign investments. The Federal Ministry of Economics and Technology (BMWi) may prohibit transactions that might interfere with German or foreign interests according to Section 4 of the Foreign Trade Law (AWG) and Section 55 et seq. of the Foreign Trade Law Ordinance (AWV). The scope of the foreign investment control has developed in the last years by stipulating a list of particularly sensitive business areas which relate to critical infrastructures20 and which, depending on certain threshold values, explicitly cover specific ICT activities.

The TKG imposes certain obligations on telecommunications service providers and network operators. Agreements relating to telecommunications services and network access can be negotiated freely21 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).22

The RStV contains special ownership control provisions23 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. On 30 April 2015, the Federal Court of Justice (BGH) 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.24 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 (OLG Köln) came to the conclusion that the app content on the relevant day was not sufficiently broadcasting-related but equivalent to print media and hence not permitted.25 In 2018, the BGH did not accept the appeal of the decision, ultimately bringing the case before the Federal Constitutional Court (BVerfG).26

v Transfers of control and assignments

The German merger control provisions are enforced by the Federal Cartel Office (BKartA). 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 TFEU and the EC Merger Regulation apply.27

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 exemptions apply.28 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.29 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.

The BKartA can 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 a transaction value of €400 million.30

Telecommunications & internet access

i Internet and internet protocol regulation

All IP-based services are regulated under the TMG.31 Commercial rules for telemedia are covered in the TMG, while aspects relating to journalistic content are regulated in the RStV32 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. When granting access to the internet, a distinction must be made according to the services and functions offered by the provider. If the provider restricts itself to the exclusive data transmission of third-party content from the internet to the user and does not prepare any content, this constitutes a telecommunications service and thus not a telemedium.

ii Universal service

Broadband availability continues to increase steadily throughout Germany. At the end of 2019, about 92 per cent of households connected with broadband connections of at least 50Mbit/s. Over 43 per cent of households have gigabit (1,000Mbit/s) connections. Bandwidths of at least 200Mbit/s are available for about 75 per cent of households. While the increasing use of super-vectoring technology has contributed to increased availability in the bandwidth classes up to 200Mbit/s, the expansion of cable TV networks (CATV) based on the new DOCSIS 3.1 technology and the expansion of FTTB/H fibre optic networks are driving growth in the higher bandwidth classes. However, LTE coverage can still be improved in Germany. The network operators had promised to provide LTE network coverage of 98 per cent (by population) nationwide by the end of 2019. In each federal state, 4G coverage had to be at least 97 per cent. According to a recent inquiry by the BNetzA from May 2020, this proof could not be provided by the network operators in all federal states.33

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 dividend34 and formulating regulations that foster investments. Various initiatives exist at the federal, state and local levels.35

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.36

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 as a result of the lack of suitable financing.

White areas37 are shrinking rapidly, partly thanks 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,38 the Association of the Providers of Telecommunications and Value-Added Services39 and the Association of Towns and Municipalities.40

The next revision of the TKG is expected to make a further contribution to broadband expansion.41 For example, the federal government is planning a right to fast internet access based on criteria defined by the BNetzA. In addition, certain sanctions will be laid down in the event that a network operator fails to deliver the guaranteed transmission rates. In order to drive the expansion forward, the revision also aims to implement the newly permitted, more comprehensive regulatory incentive mechanisms from the EECC.42

iii Restrictions on the provision of service

An amendment of the TKG in 2012 initially introduced the concept of net neutrality. The federal government was authorised to draft a regulation that sets out, inter alia, the requirements for non-discriminatory data transmissions.43 However, with the entry into force of the European Net Neutrality Regulation,44 a national regulation was no longer pursued and the TKG provision was repealed. Article 3 of the Net Neutrality Regulation 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. The BEREC45 published guidelines for the implementation of the obligations of national regulatory authorities.

An example of controversial restrictions on network provisioning is the reduction of the internet speed on mobile phone plans. In Germany, mobile phone plans usually only grant few gigabytes46 of traffic with full speed. Having exceeded this data amount, Internet-speed will be reduced to 16 or 32kbit/s. For some years, mobile network carrier offered so called 'passes', which exclude certain music streaming services or social media services from this amount of data.47 In 2018, the BNetzA prohibited certain conditions of a zero-rating mobile tariff option, which has been challenged by the provider. The Administrative Court of Cologne referred questions to the European Court of Justice (CJEU), which has not been answered yet.48 In a second case, regarding the reduction of internet speed by a provider, the same Court also referred a question to the CJEU concerning the conformity with Article 3 of the Roaming Directive.49 In a recent ruling, the CJEU states that 'the requirements to protect internet users' rights and to treat traffic in a non-discriminatory manner preclude an internet access provider from favouring certain applications and services by means of packages enabling those applications and services to benefit from a “zero tariff” and making the use of the other applications and services subject to measures blocking or slowing down traffic'.50

Finally, the UWG provides restrictive provisions regarding unsolicited calls, emails and text messages.51 Making first contact with consumers by such measures requires, as a general principle, the explicit approval of the consumers.52

iv Privacy and data security

Privacy

The protection of personal data in the ITC area is governed by (1) the EU General Data Protection Regulation (GDPR), (2) the Federal Data Protection Act (BDSG) as well as (3) sector-specific telecommunications and telemedia laws. The regulation is supervised by the BfDI, data protection authorities on federal states level and partly the BNetzA.

In a 1983, the BVerfG developed a right to privacy as 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) GG. Until 2018, the protection of individuals regarding the processing of their personal data was laid down in local data protection law, especially the BDSG.

With the enactment of the GDPR further strengthening individual rights and meeting the challenges of globalisation and new technologies, the BDSG was also heavily amended and revised with effect from 25 May 2018. The GDPR is a uniform framework laying down principles for legitimate data processing in the EU and the EEA. Compared to the predecessor Data Protection Directive (95/46/EC), the GDPR entails significantly stricter requirements for data protection. The GDPR introduced substantial sanctions for non-compliance and, depending on the nature of the infringed provision, may consist of civil liabilities, criminal sanctions or administrative fines. Administrative fines can amount to €20 million or up to 4 per cent of the total worldwide annual revenue, whichever is higher, for each violation.

In addition, both the TKG and the TMG provide sector-specific privacy rules. The TMG provides a legal framework as regards online privacy including requirements for the collection and further processing of usage and location data. The TKG provides rules for telecommunication service provider including requirements for collection and further processing of traffic and location data. Section 88 TKG stipulates provisions pertaining to the telecommunication secrecy (content data and partly traffic data). With the announced renewal of the telecommunications laws it is discussed whether the TMG and TKG data protection rules may be consolidated in a new sector-specific act for electronic communication, telemedia and telecommunications.

Data security

Data security in Germany is governed by the Law on the Federal Office for Information Security (BSIG), sector-specific regulations in the TKG as well as the the GDPR. A major amendment of the BSIG has been made in 2015, aiming at an improvement in the IT security of critical infrastructure53 including ICT infrastructure. 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 with wide-ranging tasks of threat prevention in IT systems. The BSI 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.

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, like the IT and telecommunication 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 once every two years through security audits or certificates.54

Operators of telecommunication services have the duty to inform their customers of any IT security risk, and to provide information on solutions for these problems.55 Telemedia services operators must ensure that their users are protected from attacks on IT security through state-of-the-art technical and organisational means.56

The EU Commission has adopted several measures to prepare Europe against cyber incidents. In particular, the Directive on Security of Network and Information Systems (NIS Directive) was the first EU-wide legislation on cybersecurity.57 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 2017.58

On 27 March 2019, the German Federal Ministry of the Interior proposed a new bill for an IT Security Act 2.0 (IT-SiG 2.0). The IT-SiG 2.0 aims, inter alia, to further strengthen the BSI by transferring new competences. It also prescribes additional obligations on manufacturers, providers and operators of critical infrastructure while introducing stricter penalties. A new draft of the bill was published in May 2020 further strengthening the position of the BSI.59

The BNetzA has published a revised catalogue of security requirements for the operation of telecommunications and data processing systems and for the processing of personal data pursuant to Section 109 TKG (Version 2.0).60

Data retention for the purpose of inner security

Since the BVerfG rendered data retention of traffic data as intended under the TKG of 2007 to be unlawful,61 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.62 After two drafts of a German data retention act in 2011 and 2013 were not adopted, a new law came into force on 18 December 2016.63 However, further legal proceedings prevented the retention of traffic data. In proceedings for interim relief before the Higher Administrative Court of Münster, a telecommunications service provider obtained a temporary exemption from the retention obligation.64 In response to this decision of 22 June 2017, the BNetzA declared that until final clarification in the main proceedings, telecommunications providers who do not comply with the retention obligation as of 1 July 2017 will not be held responsible under supervisory law. In its ruling of 20 April 2018, the Cologne Administrative Court followed the Higher Administrative Court. The Court found that the plaintiff – a telecommunications service provider – is not obliged to retain the telecommunications connection data of its customers in the context of data retention because the statutory provisions are not compatible with EU law. On 25 September 2019, the Federal Administrative Court (BVerwG) decided to refer the final interpretation of the Data Protection Directive for Electronic Communications (Directive 2002/58/EC) to the CJEU.65 Pending final clarification in Luxembourg, data retention in Germany remains suspended. In addition, several constitutional complaints against the 2015 law are currently pending before the BVerfG in Germany.

Where the journey before the CJEU could take us is shown by the Opinion of the Advocate General of 15 January 2020 in similar proceedings. The Advocate General considers the current rules in France, the United Kingdom and Belgium violating EU law. From his point of view, the retention of telephone and internet connection data to be lawful only to a very limited extent.66

Enforcement of law in social networks

With effect from 1 January 2018, the Network Enforcement Act (NetzDG) was implemented to secure and improve the enforceability of penalties against unlawful contact on significant social media platforms. Social network providers are 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.67

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.

The Federal Department for Media Harmful to Young Persons (BPjM) is the authority responsible for protecting children and adolescents from media68 that might contain harmful or dangerous content under the JuSchG. The BPjM can act only at the request of other administrative institutions. 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.69

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 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 next generation of mobile network – 5G – is already being realised. Since the current allocations for the 800MHz, 1,800MHz and 2.6GHz frequencies will expire by 31 December 2025, there is a public inquiry being carried out to guarantee early availability of suitable frequencies for high-performance networks.70

ii Flexible spectrum use

The use of a spectrum requires its prior allocation.71 The TKG states that the allocation of spectra shall be regulated by a Spectrum Regulation, and requires the Federal Council's consent.72 Based on the allocation of frequencies and the specifications set out in the Spectrum Regulation under Section 53 TKG, the BNetzA shall divide the spectrum ranges into spectrum uses and related terms of use.73 Spectra for wireless access to telecommunication networks must be assigned in a technologically and service-neutral manner.74

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.75

iii Broadband expansion through spectrum auctions

A few rural areas in Germany still lack high-speed internet connections. Thus, the federal government concentrates on the development of the broadband network towards a fibre-optic network with planned investments of €100 billion by 2025.76

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.77 Often, the procurement is held in the form of a spectrum auction, which is organised by the BNetzA.78

On 12 June 2019, the latest auction of mobile broadband spectrum ended following 497 bidding rounds over seven weeks.79 The auction of 5G-frequencies in the fields of 2 and 3.6GHz aggregated a total amount of approximately €6.5 billion.

Media

i Regulation of media distribution generally

Media distribution is currently mainly regulated by the RStV.80 The regulation differs according to the different persons involved. In the future, the focus will be primarily on the intermediaries.

Various aspects of regular distribution are regulated, such as product placement. For example, Sections 7, 15 and 44 of the MStV deal with permissible and impermissible product placement. According to these provisions, product placement is generally prohibited and may only be carried out with a clear indication and without significant influence on the editorial responsibility and independence of the content.81

ii Internet-delivered video content

In future, internet-delivered video content will be more strictly regulated at the level of intermediaries and slightly less regulated at the level of content creators. The new MStV stipulates that intermediaries (in particular very large video platforms) will operate completely non-discriminatorily in the future. To ensure this, increased transparency requirements and obligations to state reasons are established. The European Commission also released the Guidelines on Video Sharing Platforms 2020/C 223/02.82

The need for a broadcasting licence according to the RStV for streamers or influencers is a particularly controversial and difficult topic. Up to now, the legal framework of these broadcasting licences has been almost exclusively designed for TV broadcasts, from which online streaming usually differs significantly. The requirements for the need of a broadcasting licence have so far been – for online streaming – relatively low. A live-stream ('linear') with more than 500 potential viewers and editorial design83 as well as regular broadcasting is sufficient.84 In the new MStV in particular the spectator requirement is raised to 20,000 persons. In addition, such offers, which have only a small meaning for the formation of opinion, are in the future excluded from the requirement.

The year in review

In 2019, the CJEU ruled on two noteworthy cases, which originate in the increased regulation by the BNetzA. Both concern whether or not over-the-top services (OTT) are electronic communications services. OTT services use the internet to provide special communication services such as email or internet-calls (VoIP), regardless of the internet provider.

The first decision85 concerned the SkypeOut internet telephone service, which made it possible to call telephone numbers connected to the 'normal' telephone network via the internet from inside the Skype application (VoIP). The Court ruled that a 'service which allows the user to call a fixed or mobile number covered by a national numbering plan from a terminal via the public switched telephone network (PSTN) of a Member State constitutes an “electronic communications service”'. Therefore, SkypeOut is subject to regulations by the BNetzA under the TKG.

The second decision86 concerned the email service provider Gmail by Google. Both the BNetzA and the administrative court considered Gmail to be a telecommunications service although the service was free of charge and the services took place in the 'open internet'. The administrative court argued, that the individual procedural steps (transmission via the open internet, storage on Gmail servers) could not be evaluated separately from each other. The CJEU, however, ruled that the decisive criterion was not the functional usage of (third-party) infrastructure but responsibility for the data transmission. While SkypeOut must (necessarily) guarantee the connection between the internet and the public telephone network through a gateway, Gmail only provides a service that depends on data transmission on a foreign network (the internet) without (technically) guaranteeing this transmission. Therefore Gmail may not be considered a telecommunications service.

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 Joachim Grittmann is a counsel at Latham & Watkins LLP.

7 On 18 July 2018, the German Federal Government set up the Data Ethics Commission (DEK), which is responsible for ethical standards and guidelines. A first report was published in 2019; see https://www.bmi.bund.de/DE/themen/it-und-digitalpolitik/datenethikkommission/ datenethikkommission- node.html.

8 Four states have joint media authorities: 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.

11 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. 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.

12 Whereas other data processing activities in the ICT area is are supervised by local data protection authorities.

14 Article 4(2) lit. h, 170 et seq. TFEU.

15 e.g., Roaming Regulations (EU) 531/2012, the Universal Service Directive 2002/22/EC, the Access Directive 2002/19/EC, European Electronic Communications Code Directive (EU) 2018/1972 (EECC), which has to be adopted by the Member States by 21 December 2020 (Article 124 EECC).

16 Section 20(1) RStV.

17 Section 20(2) RStV.

18 Section 6 TKG.

19 The BNetzA publishes a list of notified undertakings at regular intervals: https://www.bundes-netzagentur.de/EN/Areas/Telecommunications/Companies/Notification/ NotificationRequirement-node.html.

21 e.g., access, payment terms, currency and billing.

22 See Sections 21 and 28 TKG.

23 Section 25 et seq. RStV.

24 BGH ruling of 30 April 2015 – I ZR 13/14 – GRUR 2015, 1228 et seq.

25 OLG Köln ruling of 30 September 2016 – 6 U 188/12 – GRUR 2017, 311().

26 MMR-Aktuell 2018, 402395.

27 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32004R0139.

28 Two de minimis exemptions apply under the following conditions:

a one 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

b the 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).

29 See Getting the Deal Through – Merger Control, https://gettingthedealthrough.com/area/20/ jurisdiction/11/merger-control-germany.

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

31 Adopted on 18 January 2007 and last amended on 11 July 2019.

32 Section 54 et seq. RStV.

33 While some states are nearly 100% covered, others have only 80.7% coverage or even less: https://www.bundesnetzagentur.de/DE/Sachgebiete/Telekommunikation/Unternehmen_ Institutionen/Frequenzen/OeffentlicheNetze/Mobilfunknetze/mobilfunknetze-node.html.

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

35 e.g., the German broadband initiative, the Netalliance Digital Germany initiative and Zukunftsoffensive Gigabit Germany; the Netalliance Digital Germany initiative started on 7 March 2014.

37 White areas are rural areas in Germany that still lack high-speed internet connections.

43 See former Section 41a(1) of the TKG.

44 European Net Neutrality Regulation 2015/2120/EC, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015R2120.

45 Body of European Regulators for Electronic Communications.

46 Usually 1 to 15 GB.

47 Known as 'zero-rating' or 'zero tariff'.

48 Administrative Court of Cologne decision of 19 November 2019 – 9 K 8221/18 – https://www.vg-koeln.nrw.de/behoerde/presse/Pressemitteilungen/Archiv/2019/26_191119_01/index.php.

49 Administrative Court of Cologne decision of 20 January 2020 – 9 K 4632/18 – https://www.vg-koeln.nrw.de/behoerde/presse/Pressemitteilungen/03_200121/index.php.

51 Section 7 UWG.

52 Fines can be as high as €300,000; see Section 20(1) and (2) UWG.

53 Further defined in the BSI KRITIS Ordinance; see above Fn. 19.

54 Section 8a BSIG.

55 Section 109a(4) TKG.

56 Section 13(7) TMG.

58 https://eur-lex.europa.eu/legal-content/DE/TXT/?uri=CELEX%3A32016L1148. 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, https://www.bgbl.de/xaver/bgbl/start.xav?start=%2F%2F*%5B%40attr_id%3D%27bgbl117s1885.pdf%27%5D#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl117s1885.pdf%27%5D__1600694321765.

61 BVerfG ruling of 2 March 2010 – 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08 – BeckRS 2010, 46771.

62 CJEU ruling of 8 April 2014 – C-293/12 and C/594/12 – BeckEuRS 2014, 393023.

64 Higher Administrative Court of Münster decision of 22 June 2012 – Az. 13 B 238/17 – NVwZ-RR 2018, 43.

65 BVerwG ruling of 25 September 2019 – Az. 6 C 12/18 – NVwZ 2020, 1108.

67 Failure to comply with the obligations may result in fines of up to €50 million.

68 The types of media monitored include, inter alia, videos, books, computer games and websites.

69 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.

70 Frequency Compass (Frequenzkompass), https://www.bundesnetzagentur.de/DE/ Sachgebiete/Telekommunikation/Unternehmen_Institutionen/Frequenzen/OeffentlicheNetze/Mobilfunknetze/mobilfunknetze-node.html.

71 Section 55(1) TKG.

72 Section 53(1) TKG.

73 Section 54(1) TKG.

74 Section 54(2) TKG.

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

77 Section 55(10) TKG.

78 Section 61 TKG.

79 After the merger of Telefónica and E-Plus in the summer of 2014, only four operators (Drillisch, Telefónica, Telekom and Vodafone) were allowed to bid.

80 The RStV will soon be replaced by the MStV.

81 For example, a private broadcaster recently broadcast a certain format for one week under the theme of a current motion picture. During the broadcast, excerpts of the new film were shown and scenes were re-enacted. The State Media Authority declared a violation of the RStV, which was confirmed by the Administrative Court of Cologne in a ruling of 9 June 2020 – 6 K 14278/1 – https://www.vg-koeln.nrw.de/behoerde/presse/Pressemitteilungen/29_200617/index.php.

83 Even the insertion of comments or the editing of the video may be sufficient.

85 CJEU ruling of 5 June 2019 – C-142/18 – ECLI:EU:C:2019:460.

86 CJEU ruling of 13 June 2019 – C-193/18 – ECLI:EU:C:2019:498.

Get unlimited access to all The Law Reviews content