To what extent are local authorities allowed to distribute official gazettes?
Due to the guarantee of municipal self-government under Art. 28 para. 2 sentence 1 GG, municipalities have the opportunity to carry out public relations work. Art. 28 para. 2 sentence 1 GG gives municipalities the right to regulate all matters of the local community within the framework of the law on their own responsibility. However, the point of reference for the municipalities' universal responsibility is always those matters that are to be regarded as public administration tasks. The constitutionally justified allocation of tasks by the state and the inherent authorization to inform citizens therefore does not allow municipalities to make any press-related statements that have any connection to the public community. The municipalities' right to public relations work is restricted in particular by the institute of the free press pursuant to Art. 5 para. 1 sentence 2 GG and the requirement that the press be independent of the state, which is also derived from Art. 5 para. 1 sentence 2 GG.
These restrictions constitute market conduct regulations within the meaning of Section 3a UWG. The more a state publication encroaches on the remit of the free press, the greater the risk that the requirement that the press be independent of the state and the institution of the free press under Article 5 para. 1 sentence 2 of the German Basic Law will be violated. According to the BGH, under no circumstances may the municipal publication offer readers a wealth of information that makes the purchase of a newspaper - at least subjectively - unnecessary. The more clearly an extended official gazette covers topics that would normally prompt people to buy newspapers, the more likely it is that the private press will lose readers. However, this would mean the state shaping opinion from the top down, which would run counter to the institution of the free press.
What can local authorities do?
It does not follow from the decision of the BGH that local authorities may not continue to distribute official gazettes. However, the BGH clarifies in its ruling of 20.12.2018 that official gazettes must primarily relate to matters that are to be regarded as public administration tasks. They must not act as a functional equivalent to a private newspaper.
When assessing the overall character of the official gazette, its visual design, its editorial elements (such as glossaries, commentaries or interviews) and its frequency of distribution must be taken into account. The use of press-like presentation elements and a regular publication frequency alone do not automatically lead to a violation of the requirement that the press be independent of the state and of the institution of the free press. However, the limit is exceeded if the printed work is no longer recognizable as a state publication.