In a case brought by the Association of German Concert Organisers (VDKD) against the Free and Hanseatic City of Hamburg, Gleiss Lutz has won a landmark ruling on the legitimacy of publicly financed and organised cultural events. The Hanseatic Higher Regional Court confirmed on appeal that the City of Hamburg and the city-owned company Hamburg Musik gGmbH can continue to stage concerts in the Laeiszhalle and the not-yet-completed Elbphilharmonie. In doing so, it rejected the appeal filed by VDKD against the Hamburg District Court’s judgment of December 2011, which had dismissed an action brought by VDKD in its entirety. The Hanseatic Higher Regional Court did not allow a further appeal to the Federal Supreme Court.
VDKD had sued the City of Hamburg over its two-pronged concept for the City’s concert halls. The concept includes, on the one hand, concerts organised by Hamburg Musik gGmbH and, on the other, concerts staged by private organisers, for which the City rents out the concert halls. VDKD had argued that by organising concerts itself, the City was unlawfully obstructing private concert organisers. The dispute essentially centred around the question of whether and to what extent the public sector may itself organise concerts and other cultural events where it competes with private organisers in so doing.
Following the District Court, the Hanseatic Higher Regional Court has now also confirmed that, given that one of the state’s duties is to promote culture, it is within its rights to organise concerts itself. Nor does the public sector have any obligation to model its ticket prices on those charged by private organisers.
The appeal proceedings primarily focused on how to assess the financing of HamburgMusik gGmbH by the City of Hamburg under EU state aid law and the fundamental legal question of whether a possible infringement of State aid law in this relationship could give rise to a cease and desist claim under the law against unfair competition. The Hanseatic Higher Regional Court rejected this view in its judgment.
The Gleiss Lutz team handling the matter was made up of Dr. Ingo Brinker (partner, antitrust, Munich), Dr. Ulrich Soltész (partner, antitrust and state aid, Brussels), Dr. Jörn Wöbke (partner, corporate and procedural, Hamburg) and Christian von Köckritz (antitrust and state aid, Brussels). Gleiss Lutz already represented the City of Hamburg in the proceedings before the Hamburg District Court.
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