On January 21, 2019, publishing company Gruner+Jahr (“G+J”) withdrew its notification of the proposed re-acquisition of the license to publish the German edition of “National Geographic” following the FCO expressing competition concerns.[1]

G+J has held the (time-limited) publishing license since “National Geographic” first entered the German market in 1999. Besides “National Geographic”, which is by turnover the second largest German-language science magazine covering, inter alia, nature, geography, history and ethnology, G+J publishes its closest competitor “Geo” as well as “P.M.”, both ranking number 1 and 3, respectively.

Based on its in-depth investigation, the FCO found G+J to be dominant in the national market for popular science publications with a market share of more than 40%. In the FCO’s view, neither any other vendor’s magazines nor any online or TV publications are able to exert sufficient competitive pressure on G+J. This is evidenced by the fact that—irrespective of a massive decline in demand for popular science magazines—G+J has been able to continuously increase prices for its publications over the last ten years. While the re-acquisition of licensing rights—the current license held by G+J expires at the end of 2019— would not have further strengthened, but only perpetuated G+J’s market position, competition would be improved in the alternative scenario where a third party acquired the licensing rights. Comparing the hypothetical future scenarios, the FCO took the preliminary view that the license renewal would have resulted in very limited options for readers to switch to other publishers’ products in the future, and that it would thus have significantly impeded competition between science magazines.

Interestingly, this is the second time the FCO has effectively prevented G+J from acquiring licensing rights for the German edition of “National Geographic”. The FCO’s prior attempt in 2004,[2] however, was rejected by the DCA. The DCA—as confirmed by the FCJ—found that the transaction did not constitute a notifiable concentration as National Geographic had not been published in Germany before and thus had no pre-existing position on the domestic market which could have further strengthened G+J’s position in the German market for popular science magazines.[3] However, now that the German edition of “National Geographic” has been established and has built up a market position in Germany, the FCO concluded that the (re-)acquisition of the license underlying the magazine’s current market position would thus constitute a notifiable acquisition of control over a substantial part of the assets of another company.

G+J also marks one of four cases over the last few months where parties withdrew their merger filings after the FCO had expressed preliminary concerns in phase II (in-depth review of the transaction) and informed the parties of its intention to block the transactions (see below for reports on the other cases). Despite the parties’ withdrawals, the FCO published its preliminary views on the effects of the transactions in press releases and extensive case summaries.

[1]              FCO Press Release, “G+J withdraws notification of purchase of “National Geographic” licence after Bundeskartellamt expresses concerns”, April 1, 2019, available in English here. FCO Case Summary (B7-176/18), “Bundeskartellamt prüft Auswirkungen eines Zusammenschlusses auf dem Lesermarkt für populäre Wissenszeitschriften in Deutschland”, April 1, 2019, is only available in German here.

[2]              The FCO retroactively prohibited the acquisition after it had become aware of the first license agreement. See FCO’s Press Release, “Bundeskartellamt prohibits Gruner + Jahr purchase of license for “National Geographic”, August 9, 2004, available in English here and Gruner + Jahr/G+J/RBA (B6-45/04), FCO decision of August 3, 2004, only available in German here.

[3]              See Gruner + Jahr/G+J/RBA (VI-Kart 24/04 (V)), DCA decision of June 15, 2005, only available in German here. The FCJ confirmed the DCA’s judgment in 2006; see National Geographic I (KVR 32/05), FCJ decision of October 10, 2006, only available in German here.