H e a d n o t e s

to the Order of the First Senate of 20 July 2021

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State Treaty on the Financing of Public Broadcasting

1. Freedom of broadcasting under Art. 5(1) second sentence of the Basic Law gives rise to a state duty to act so as to guarantee adequate funding for public broadcasters that enables them to perform their tasks. It confers upon public broadcasters a corresponding right to receive such funding. Failure to fulfil this duty can be challenged by public broadcasters in constitutional complaint proceedings.

2. It is incumbent upon the Länder to fulfil the state’s duty to provide funding arising from Art. 5(1) second sentence of the Basic Law as they are bound together by a system for the federal sharing of responsibility, whereby each Land bears joint responsibility. Even though the individual Länder each have legislative competence to enact legislation on the funding of public broadcasting, the current design of the system of federal sharing of responsibility means that only legislation passed jointly by all Länder can give effect to the protection of this fundamental right.

3. Under the current system by which public broadcasting is funded, a single Land cannot simply reject a proposed increase of the public broadcasting fee – especially if the rejection is not justified by tenable reasons.

FEDERAL CONSTITUTIONAL COURT

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IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaints

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the Federal Constitutional Court – First Senate –

with the participation of Justices

President Harbarth,

Paulus,

Baer,

Britz,

Ott,

Christ,

Radtke,

Härtel

held on 20 July 2021:

1. By failing to approve the First State Treaty to Amend State Media Treaties of 10 to 17 June 2020 (First Amending State Media Treaty, Erster Medienänderungsstaatsvertrag ), the Land Saxony-Anhalt violated the freedom of broadcasting under Article 5(1) second sentence of the Basic Law (Grundgesetz ).

2. Art. 1 of the First Amending State Media Treaty is provisionally applicable with effect from 20 July 2021 until new State Treaty provisions regarding adequate funding of the complainants by way of the public broadcasting fee have entered into force.

3. […]

R e a s o n s :

A.

The constitutional complaints concern the guarantee of adequate funding that enables public broadcasters to perform their tasks.

I.

The Commission for Reviewing and Ascertaining the Funding Requirements of Public Broadcasters (Kommission zur Überprüfung und Ermittlung des Finanzbedarfs der Rundfunkanstalten – KEF; hereinafter: the Commission) had proposed, in its 22nd report, raising the monthly public broadcasting fee for the 2021-2024 funding period. At the same time, the Commission recommended changing how the revenue from the broadcasting fee is distributed between broadcasters ARD, ZDF and Deutschlandradio , while also suggesting that the amount of funding awarded to Radio Bremen and Saarländischer Rundfunk be increased within the framework of the financial equalisation scheme ([…]). The Commission’s proposals were incorporated into the First Amending State Media Treaty (Erster Medienänderungsstaatsvertrag ), which was signed by all the heads of government of the Länder – including by the Minister-President of Saxony-Anhalt, who attached a protocol note. Over the course of 2020, the respective legislative bodies in 15 Länder granted approval for transposing the First Amending State Media Treaty into Land law. The only Land not to approve the First Amending State Media Treaty was Saxony-Anhalt. The complainants challenge this failure to approve the treaty, which led to the State Treaty not entering into force, on the grounds that it prevented them from receiving adequate funding.

II.

1. The process of determining the public broadcasting fee is governed by §§ 1 ff. of the State Treaty on the Financing of Public Broadcasting (Rundfunkfinanzierungsstaatsvertrag – RFinStV, last amended by the State Treaty on Modernising the German Media Landscape, Staatsvertrag zur Modernisierung der Medienordnung in Deutschland , of 14 to 28 April 2020, inter alia published in Baden-Württemberg Law Gazette, Gesetzblatt für Baden-Württemberg – GBl BW 2020 p. 429, p. 1063). According to these provisions, the public broadcasting fee is determined in a three-stage process.

In the first stage, the public broadcasters submit their funding needs based on their programming decisions (submission stage, § 1 RFinStV).

In the second stage, the Commission examines whether the programming decisions fall within the scope of the broadcasting mandate and whether the ensuing funding needs have been calculated in accordance with the principles of efficiency and economy (examination stage, §§ 3 and 5 RFinStV). The Commission is independent and not bound by instructions (§ 2 RFinStV). It is composed of experts appointed by the Länder (§ 4(4) first sentence RFinStV). At least every two years, the Commission submits a report to the Land governments setting out the financial situation of the public broadcasters, which includes a proposal as to whether, when and in what amount the broadcasting fee should be adjusted. In practice, a process has evolved whereby the Commission submits a funding report every four years, followed by an interim report two years later. When reviewing and ascertaining the funding requirements, the Commission must duly involve the public broadcasters (§ 5(1) first sentence RFinStV). In particular, before the final report is submitted, the broadcasters must be given the opportunity to submit statements and to discuss the draft report (§ 5(2) RFinStV). The Land governments inform their Land parliaments by forwarding the Commission’s reports to them (§ 3(8) third sentence RFinStV). According to § 5a RFinStV, which was inserted into the State Treaty at a later date, the broadcasters also submit a written report to the Land parliaments on a timely basis, providing information on their economic and financial situation (§ 5a(1) RFinStV). Moreover, the Land parliaments can summon the broadcasters and question them in hearings on their reports (§ 5a(4) RFinStV).

In the third stage, the Länder determine the fee (determination stage, § 7 RFinStV). The fee proposal by the Commission forms the basis upon which the parliaments of the Länder make their decision (§ 7(2) first sentence RFinStV). If they intend to deviate from the fee proposal, the Broadcasting Commission of the Länder (Rundfunkkommission der Länder ) must discuss such deviations with the public broadcasters while also involving the Commission for Reviewing and Ascertaining the Funding Requirements (§ 7(2) second sentence RFinStV). If the Länder decide to go forward with the deviations, they must provide reasons justifying their decision (§ 7(2) third sentence RFinStV).

2. […]

III.

The process for determining the public broadcasting fee for the 2021-2024 funding period took place in 2019 and 2020.

The public broadcasters that lodged constitutional complaints had submitted their funding needs to the Commission by 30 April 2019. Based on these funding needs, the public broadcasting fee would have had to be raised by EUR 1.74, from EUR 17.50 (the applicable fee since April 2015) to EUR 19.24 ([…]).

In February 2020, the Commission published its 22nd report. In its evaluation of submissions received, it concluded that the public broadcasting fee had to be raised by 86 cents from EUR 17.50 to EUR 18.36 as of 1 January 2021 ([…]). Thus, the evaluation of the funding requirements came in at 88 cents below the additional funding in the amount of EUR 1.74 requested by the complainants, a difference of approximately 51%. […]

[…]

Thereupon, the complainants addressed the chair of the Broadcasting Commission of the Länder in a joint declaration of 10 March 2020. They highlighted the significance of being represented throughout Germany and of ensuring greater participation of the East German Länder . They declared that they were striving to introduce more formats in their programming that are set in the East German Länder and are produced there. They stated that the structural reforms launched in 2017 were being continued and that potential savings and synergies were being identified and implemented. Moreover, the public broadcasters were trying to streamline their administrative and programming structures and to curb the increase in personnel costs.

At the Conference of the Heads of Government of the Länder that took place in Berlin on 12 March 2020, the draft of the First State Treaty to Amend State Media Treaties (hereinafter: First Amending State Media Treaty) was adopted. The Land Saxony-Anhalt abstained from voting on the resolution. […]

In two separate letters of 27 April 2020, the Minister-President of Saxony-Anhalt addressed the complainants. In one letter, he addressed the regional presence of public broadcasters across the different Länder and the participation of the East German Länder , criticising that the latter continued to be underrepresented. He also called for a joint broadcasting institution to be headquartered in Saxony-Anhalt in the near future in order to make the self-asserted role of the complainants visible there. In the other letter, he made reference to the planned austerity measures and structural reforms. […] He stated that the Commission’s recommendations had not been sufficiently implemented, in particular with regard to personnel and remuneration.

[…]

By letter of 11 May 2020, the ZDF Director-General (Intendant ) replied to the Minister-President of Saxony-Anhalt, pointing to the austerity measures that had already been carried out. […] On 20 May 2020, the directorate of ARD sent a letter to the Minister-President of Saxony-Anhalt. The letter stated that the complainants […] had agreed to participate in an interconnected cultural programming offer based in the broadcasting area and organised under the auspices of MDR [the regional public broadcaster for the East German Länder Saxony-Anhalt, Saxony and Thuringia]. In a further letter of 4 June 2020, the directorate of ARD sought to win Saxony-Anhalt’s support for the fee increase. […]

[…]

The First Amending State Media Treaty was signed at the Annual Conference of Minister-Presidents of the Länder , which was held in Berlin from 10 to 17 June 2020. The Minister-President of Saxony-Anhalt signed on 16 June 2020, making the following addendum to his signature:

“Declaration of Saxony-Anhalt upon signature: Saxony-Anhalt abstained from voting at the Conference of Minister-Presidents on 12 March 2020. This signature serves to allow decision-making to proceed within the remit of the 16 Land parliaments.”

The Saxony-Anhalt Land Government introduced a bill on the First Amending State Media Treaty in the Saxony-Anhalt Landtag (state parliament) on 30 June 2020 (cf. Landtag document, Landtagsdrucksache – LTDrucks 7/6252).

In its meeting of 4 September 2020, the competent parliamentary committee of the Saxony-Anhalt Landtag held deliberations on the 22nd report of the Commission with the directors-general of broadcasters WDR, MDR, ZDF and Deutschlandradio ([…]).

In its […] meeting of 9 October 2020, the competent committee of the Saxony-Anhalt Landtag agreed to conduct a hearing on 13 November 2020 ([…]). Amongst others, the committee invited the directors-general of the complainants and the chair of the Commission to its meeting on 13 November 2020. The chair of the Commission emphasised that the Commission was bound by the public broadcasting mandate as formulated by the Länder . He claimed that bringing about changes in this area was an integral part of media policy, and thus incumbent upon the Länder as the legislators deciding on broadcasting matters. The additional funding requirements calculated by the Commission resulted from the existing public broadcasting mandate. While he acknowledged that the Federal Constitutional Court had considered deviations [by the Länder ] from the Commission’s proposal permissible within narrow limits, he contended that there were no grounds for such deviation in the present case. Following the hearing, the committee envisaged drafting a recommendation for a decision in the Landtag in its next meeting on 2 December 2020 ([…]).

In his letter of 8 December 2020, the Minister-President informed the President of the Saxony-Anhalt Landtag that the chairpersons of the three parliamentary groups of the governing coalition had declared that persisting disagreement regarding the First Amending State Media Treaty made it impossible to achieve a majority in the Landtag for approving the bill, and thus for approving the State Treaty. He stated that he would therefore retract the bill that his government had submitted by letter of 30 June 2020. […]

By letter of 10 December 2020, the Head of the State Chancellery and Culture Minister of the Land Saxony-Anhalt informed the other members of the Broadcasting Commission of the Länder that the bill had been retracted on 8 December 2020. He added that the situation had changed considerably since the heads of government took the decision [to adopt the State Treaty] in March 2020. He stated that the Commission for Reviewing and Ascertaining the Funding Requirements would now also have to assess the effects of the pandemic. Following such an assessment, the Länder would have to re-evaluate whether there was reason to fix the public broadcasting fee in deviation of the Commission’s proposal.

Between September and December 2020, the legislative bodies of all Länder , with the exception of Saxony-Anhalt, adopted decisions approving the First Amending State Media Treaty and deposited the instruments of ratification.

IV.

The First Amending State Media Treaty was to amend the State Treaty on the Financing of Public Broadcasting with effect from 1 January 2021. The amendments laid down therein concerned the fee amount (§ 8 RFinStV), the distribution of the revenue generated by the public broadcasting fee between ARD, ZDF and Deutschlandradio (§ 9 RFinStV) and an increase in the amount of funding awarded to Radio Bremen and Saarländischer Rundfunk under the financial equalisation scheme (§ 14 RFinStV).

According to Art. 1 no. 1 of the First Amending State Media Treaty, the public broadcasting fee laid down in § 8 RFinStV was to be raised from EUR 17.50 to EUR 18.36. Moreover, Art. 1 no. 2 of the First Amending State Media Treaty was to modify the distribution of the revenue generated by the broadcasting fee among the public broadcasters under § 9 RFinStV. […]

In addition, Art. 1 no. 3 of the First Amending State Media Treaty was to modify the amount of funding awarded to Radio Bremen and Saarländischer Rundfunk pursuant to § 14 RFinStV. Their funding share was to be raised from 1.6% to 1.7% of the net revenue awarded to ARD with effect from 1 January 2021, and subsequently to 1.8% with effect from 1 January 2023.

[…]

V.

The complainants challenge violations of their freedom of broadcasting under Art. 5(1) second sentence of the Basic Law (Grundgesetz – GG).

1. […]

The complainants assert that, according to the Federal Constitutional Court’s established case-law, freedom of broadcasting gives rise to a constitutional duty on the part of the legislator to guarantee adequate funding of public broadcasters and that public broadcasters can invoke this guarantee as an individual right. The complainants add that in its case-law, the Federal Constitutional Court developed procedural safeguards giving effect to this guarantee. These safeguards serve to uphold public broadcasting’s programme autonomy and detachment from state authority (Staatsferne ), ensuring that the fee burden is reasonable in the interest of persons liable to pay the broadcasting fee while also enabling public broadcasters to fulfil their mandate. The complainants submit that, in the context of the multi-stage process for determining the fee amount, the Länder are in principle bound by the evaluation of the funding requirements of the Commission, which is based on technical expertise.

[…]

2. […]

3. […].

4. All complainants consider it necessary for the Federal Constitutional Court to issue an order of execution pursuant to § 35 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) so as to prevent unconstitutional underfunding of the public broadcasters for the time period between the rendering of a decision in the principal proceedings and deposit of the instrument of ratification [by the Land Saxony-Anhalt]. While the complainants, in their role as broadcasters, had committed to fulfilling their programming mandate in full despite the current situation for as long as possible, they claim that they have only limited capacity to continue to render “advance services” without additional funding.

By letters of 1 and 7 April 2021, the complainants added to their submissions. They called on the Federal Constitutional Court to order, in particular, that the First Amending State Media Treaty enter into force retroactively as of 1 January 2021, or, subsidiarily, that their loss of revenue be compensated in full.

VI.

Statements on the constitutional complaints were submitted by the Land Government of Saxony-Anhalt, the Land Governments of Bremen and Saarland (jointly), the other governments of the Länder (jointly), the Federal Government, the media supervisory authorities of the Länder (Landesmedienanstalten ) and the Commission for Reviewing and Ascertaining the Funding Requirements of Public Broadcasters.

[…]

B.

The constitutional complaints are admissible.

I.

The public broadcasters forming the ARD, and the ZDF, as institutions under public law (Anstalten des öffentlichen Rechts ), as well as Deutschlandradio as a corporation under public law (Körperschaft des öffentlichen Rechts ) – hereinafter: the public broadcasters – can assert a violation of their freedom of broadcasting in constitutional complaint proceedings (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 119, 181 <211> with further references; established case-law; cf. regarding Art. 34 of the European Convention on Human Rights: ECtHR, Radio France c. France, Judgment of 30 March 2004, no. 53984/00, para. 26; Mackay & BBC Scotland v. the United Kingdom, Judgment of 7 December 2010, no. 10734/05, para. 19).

II.

The constitutional complaints concern the failure of the Land Saxony-Anhalt to adopt the First Amending State Media Treaty. This is an admissible challenge in constitutional complaint proceedings within the meaning of Art. 93(1) no. 4a GG and § 90(1) BVerfGG.

It is possible to challenge a public authority’s failure to act by way of a constitutional complaint (cf. §§ 92, 95(1) first sentence BVerfGG), on condition that a corresponding duty to act can be derived from the Basic Law (cf. BVerfGE 6, 257 <264>; 23, 242 <249>; 56, 54 <70 f.>; 129, 124 <176>; 139, 321 <346 para. 82>). The corresponding duty to act in this case arises from the freedom of broadcasting – under the current system, this duty is incumbent upon each individual Land .

The state has a duty to provide public broadcasters with adequate funding, which arises from the freedom of broadcasting under Art. 5(1) second sentence GG (cf. BVerfGE 90, 60 <91>; 119, 181 <224>). This fundamental rights confers upon public broadcasters a corresponding right to receive such funding.

The state’s duty to provide funding under Art. 5(1) second sentence GG is incumbent upon the Länder as they are bound together by a system for the federal sharing of responsibility (föderale Verantwortungsgemeinschaft ), whereby each Land bears joint responsibility. One special feature of this system for the federal sharing of responsibility is that while only the Länder individually have legislative competence to pass legislation on the funding of public broadcasting (cf. BVerfGE 114, 371 <385>), the way in which public broadcasting is currently organised and financed means that only joint legislation passed by all Länder can give effect to the fundamental rights protection afforded under Article 5(1) second sentence GG.

Where adjustments to the public broadcasting fee laid down in the State Treaty on the Financing of Public Broadcasting are made – on the basis of the evaluation of funding requirements by the Commission – the adjustments can only enter into force with the unanimous approval of all Länder ; this unanimous approval is currently required for each new adjustment as no other mechanism has been put in place by the Länder (cf. BVerfGE 90, 60 <104>; 119, 181 <229>). For each Land , the specific requirements regarding transposition into Land law are set out in the respective Land constitution in accordance with Art. 28(1) first sentence GG (cf. BVerfGE 90, 60 <84 ff.>).

Even though currently all Länder together act as the legislator fixing the public broadcasting fee, each Land bears joint responsibility for fulfilling the state’s duty to provide funding, including for satisfying the procedural requirements arising therefrom. Within the system of federal sharing of responsibility, the Länder have to cooperate to ensure that public broadcasting is properly funded. Each Land therefore has a specific constitutional duty to act. Failure to fulfil this duty can be challenged by public broadcasters in constitutional complaint proceedings.

III.

As Saxony-Anhalt’s failure to approve the First Amending State Media Treaty prevented the treaty from entering into force, the complainants are individually, presently and directly affected with regard to the guarantee of adequate financing. The state’s objective duty to provide funding corresponds with the public broadcasters’ constitutional right to receive funding derived from Art. 5(1) second sentence GG, which confers upon the complainants a sufficiently individual and specific legal position. Saxony-Anhalt’s failure to approve the First Amending State Media Treaty is sufficient to establish the possibility that the complainants’ constitutional right to receive funding was infringed.

Contrary to the submission of the Saxony-Anhalt Land Government, the complainants sufficiently demonstrated and substantiated why they might be underfunded as a result of the fee adjustment not being adopted. […]

IV.

The challenge brought by the complainants, directed against Saxony-Anhalt’s failure to act with regard to its joint responsibility to guarantee adequate funding, only raises specific questions of constitutional law that are for the Federal Constitutional Court to answer, without any improved basis for decision-making to be expected from a prior examination by the ordinary courts. In this case, no prior decision by an ordinary court is required […].

C.

The constitutional complaints challenging Saxony-Anhalt’s failure to approve the First Amending State Media Treaty are well-founded. This failure violates the freedom of broadcasting enjoyed by the complainants under Art. 5(1) second sentence GG in that freedom’s manifestation as a guarantee of adequate funding that enables the public broadcasters to perform their tasks.

I.

In order to guarantee freedom of broadcasting in the German dual broadcasting system [comprising public and private broadcasters], it must be ensured that public broadcasters are able to perform their tasks, including by providing adequate funding (cf. BVerfGE 119, 181 <214> with further references; established case-law). Public broadcasters therefore have a constitutional right to receive funding. The task of fulfilling this right is incumbent upon all Länder under the system of federal sharing of responsibility, whereby each Land bears joint responsibility.

1. Freedom of broadcasting serves to enable the free formation of individual and public opinion (cf. BVerfGE 57, 295 <319>; 136, 9 <28 para. 29>; established case-law). The constitutional mandate to guarantee freedom of broadcasting, enshrined in Art. 5(1) second sentence GG, is aimed at a system ensuring that the diversity of opinions is represented in broadcast media with the greatest possible breadth and comprehensiveness (cf. BVerfGE 57, 295 <319 f.>; 73, 118 <152 f.>; 90, 60 <88>; 114, 371 <387 ff.>; 136, 9 <28 para. 29>). Designing such a system is the responsibility of the legislator, which is afforded broad latitude in this respect, including with regard to the type and detail of legislation to be enacted (cf. BVerfGE 119, 181 <214>; 136, 9 <37 para. 45>; established case-law).

a) The free formation of opinion is a precondition both for the development of one’s personality and for the democratic order as such. Opinions are formed through communication processes that could not be maintained without media organisations that disseminate information and opinions and also share own opinions themselves. Broadcasting media are of particular significance in this respect given their reach, timely reporting and power of influence (cf. BVerfGE 31, 314 <325>; 90, 60 <87>; 97, 228 <256>; 103, 44 <74>; 114, 371 <387>; 136, 9 <28 para. 29>; established case-law; on the significance of broadcasting for democracy see, e.g., ECtHR (Grand Chamber), Centro Europa 7 S. r. l. u. Di Stefano v. Italy, Judgment of 7 June 2012, no. 38433/09, para. 129; Conseil constitutionnel, Decision No. 86-217 DC of 18 September 1986, recital 11; Decision No. 2009-577 DC of 3 March 2009, recitals 2 and 3). Thus, the free formation of opinion will only bear fruit in an environment where broadcasting, for its part, provides independent, comprehensive and truthful information. In the context of modern mass communication, the aim of Art. 5(1) GG can only be achieved if the facilitating role of broadcasting is protected by fundamental rights (BVerfGE 90, 60 <87>).

b) Within the dual broadcasting system – that is, the coexistence of public and private broadcasters – the role of public broadcasting is to fulfil the traditional functions of broadcasting. As a counterweight to private broadcasters, its task is to provide broadcast services based on a rationale that is not informed by economic incentives, thus allowing distinct programming choices. Public broadcasting is meant to contribute to the diversity of content in a manner that cannot be ensured by the free market alone (cf. BVerfGE 149, 222 <260 para. 77> with further references). The legislator must ensure that the overall offer of domestic programmes essentially reflects the diversity of opinions, that broadcasting is not controlled by certain social groups and that all relevant stakeholders are represented in the overall programme (see also BVerfGE 73, 118 <153>). Journalistic and economic competition does not automatically lead to broadcasting programming that depicts the full diversity of information, experience, values and behavioural patterns present in society. Furthermore, due to the considerable pressure to consolidate in private broadcasting and the resulting risk of one-sided influence being exerted on the formation of public opinion, precautions must be taken to protect journalistic diversity (BVerfGE 149, 222 <260 para. 77> with further references; established case-law). Once the media landscape starts to erode, such developments can only be reversed to a limited extent and with great difficulty – if at all (cf. BVerfGE 119, 181 <217> with further references; established case-law).

c) Public broadcasting is primarily funded through the public broadcasting fee, in addition to revenues from broadcast advertising and other revenues. At the level of ordinary law, this is set out in § 35 first sentence of the State Media Treaty (Art. 1 of the State Treaty on Modernising the German Media Landscape of 14 to 28 April 2020). This type of financing allows public broadcasters to operate on the basis of a different economic rationale. On this basis, public broadcasters can and should contribute to the diversity of programmes on offer with unique ideas and perspectives, and provide programming that meets the constitutional requirements regarding the diversity of contents and opinions, independent from audience ratings and advertising contracts. In doing so, public broadcasters are also called upon to address aspects that go beyond the standard formats created for mass audiences, or to bring something new to such programmes. The different rationales for decision-making that inform the coexistence of private and public broadcasting can also influence one another (cf. BVerfGE 136, 9 <30 para. 32> with further references; established case-law). This potential impact of public broadcasting is all the more significant given that new technologies have increased the amount and variety of the programmes on offer, created additional forms and channels of dissemination and enabled innovative programme-related services (BVerfGE 136, 9 <28 para. 29> with further references; established case-law).

The need for these services is not called into question by advances in communication technology, in particular regarding the dissemination of information via the Internet. A broader range of programmes provided by private broadcasters and a large number of broadcasting providers does not – in and of itself – result in higher quality and diversity of broadcasting. On the contrary, the digitalisation of the media and in particular the focus on Internet networks and platforms, including social media, fosters consolidation and monopolisation in respect of content providers, disseminators and intermediaries. Where broadcasting services are for the most part financed through advertising, they do not necessarily promote journalistic quality; even on the Internet, the large audiences sought by the advertising industry can only be reached by way of programmes that appeal to the masses. In addition, there is the risk that content is deliberately tailored to users’ interests and preferences, including by means of algorithms, which results in the amplification of similar views. Such services do not aim to reflect diverse opinions; rather, they are tailored to one-sided interests or the rationale of a business model that aims to maximise the time users spend on a website, thus increasing the advertising value of the platform for clients. In that respect, it must also be noted that results shown by search engines are pre-filtered; they are in part financed through advertising, and in part depend on the number of clicks generated. Furthermore, there is an increase in non-journalistic providers that do not prepare and process information in line with journalistic standards (BVerfGE 149, 222 <261 f. para. 79>).

All of this makes it more difficult to distinguish between fact and opinion, content and advertisement, and also leads to new uncertainties regarding the credibility of sources and assessments. Individual users must now themselves process and assess the information provided by the mass media, which would traditionally have passed through the filter of professional selection in the spirit of responsible journalism. In light of these developments, fee-funded public broadcasters are required to provide genuine, thoroughly researched information that distinguishes between fact and opinion, avoids distortions of reality and does not focus on the sensational, but rather serves as a counterweight that safeguards diversity and provides guidance (BVerfGE 149, 222 <262 para. 80>). This role is of growing significance in a world characterised by increasingly complex information on the one hand and partisan viewpoints, filter bubbles, fake news and deep fakes on the other (cf., e.g., the report of the Bundestag ’s Study Commission “Artificial Intelligence” of 28 October 2020, Bundestag document, Bundestagsdrucksache – BTDrucks 19/23700, p. 447 ff.).

2. The law on broadcasting serves to ensure that public broadcasters can fulfil their traditional functions, which include their role in the formation of opinion and decision-making, and, in addition to entertainment and the provision of information, encompasses a cultural responsibility. The dual system in its current form, with privately funded stations subject to less stringent requirements than public stations, is only compatible with Art. 5(1) second sentence GG if public broadcasters are able to fulfil their mandate and if they can hold their own in journalistic competition with private broadcasters (BVerfGE 119, 181 <218> with further references; established case-law).

The legislator must honour the institutional guarantee that public broadcasters will continue to exist and evolve within this system, and enable public broadcasters to perform their tasks by ensuring that the necessary technical, organisational, staffing and financial requirements are met. Since it must remain possible to introduce new content, formats and genres as well as new forms of dissemination, and the mandate thus reflects the dynamic role of broadcasting, public broadcasters must not be limited to the current state of development in terms of programming, financing and technology. Funding must be open to new developments and be adequate to broadcasters’ needs. This is reflected in the guarantee of adequate funding. The type and scope of resources available must be commensurate with the tasks of public broadcasters (BVerfGE 119, 181 <218> with further references; established case-law). The state’s duty to provide funding corresponds with a constitutional right to receive funding on the part of public broadcasters.

3. The freedom of public broadcasters extends to their programme autonomy. It is for the public broadcasters themselves to decide what contents and types of programme are needed to fulfil their mandate. In principle, this also includes a decision on the time allocation and thus on the number and scope of the necessary programmes. This does not mean, however, that statutory limits on programming decisions are impermissible from the outset, nor does it mean that funding must be provided for each programming decision made by public broadcasters. Public broadcasters are not completely free when determining the scope of their programme and thus – indirectly – their funding needs. This is because they may not expand the scope of their programmes, and thus indirectly the funding needs resulting therefrom, beyond what is necessary to perform their tasks (BVerfGE 119, 181 <218 f.> with further references; established case-law). It remains the legislator’s responsibility to shape the mandate of public broadcasters under Art. 5(1) second sentence GG in a way that ensures diversity and to take the necessary media-policy and programming decisions; it has broad latitude in this regard (cf. BVerfGE 119, 181 <214, 221>).

4. Yet the determination of the public broadcasting fee must not be influenced by media-policy priorities. The Federal Constitutional Court laid down principles for determining the public broadcasting fee in its Judgment of 22 February 1994 (BVerfGE 90, 60 <93 ff., 101 ff.>), and affirmed these principles in its Judgment of 11 September 2007 (BVerfGE 119, 181 <220 ff.>). According to these principles, which continue to apply, the legislator must put in place substantive, procedural and organisational safeguards to ensure that the process of determining the fee does not jeopardise freedom of broadcasting but rather helps public broadcasters to fulfil their mandate by providing them with adequate funding to cover their needs (cf. BVerfGE 90, 60 <93 ff., 101 ff.>; 119, 181 <220 ff.>).

a) The principle of keeping general broadcasting legislation separate from the legislative determination of the public broadcasting fee is designed to prevent any risk of indirect influence being exerted on how the programming mandate is carried out, thereby protecting the public broadcasters in their programming freedom. Since programming decisions hinge on financial resources and financial decisions affect the programme offer, decisions on funding can indirectly influence the exercise of the broadcasting mandate (cf. BVerfGE 119, 181 <220 f.>).

b) The principles of programme neutrality and funding in line with programming needs (Programmakzessorietät ) are decisive for determining the public broadcasting fee. However, this does not mean that the legislator is barred from making media-policy and programming decisions as such. It retains latitude in terms of media policy. To exercise this latitude, however, the legislator must resort to general broadcasting legislation [rather than to adjustments of the public broadcasting fee]. Legislative decisions taken in the context of determining the public broadcasting fee, especially regarding the timing, scope and period of validity of such determination, must not be used for the purposes of influencing programming decisions or of shaping media policy, especially not within the framework of the dual broadcasting system (cf. BVerfGE 119, 181 <221> with further references; established case-law).

c) The legislator may define the mandate of public broadcasting in an abstract manner and thus indirectly also delimit the resulting funding needs. However, the programming freedom afforded public broadcasters limits the level of detail that is permissible in such legislation. Public broadcasters are free in the way in which they fulfil their legal mandate. Based on the guarantee of Art. 5(1) second sentence GG, it is for them to determine what fulfilment of their constitutional role, as specified by statutory law, requires in journalistic terms (BVerfGE 119, 181 <221> with further references; established case-law).

From a fundamental rights perspective, the substantive requirements set by the state may not go into so much detail that the amount of the public broadcasting fee were already pre-determined thereby, irrespective of whether such level of detail could actually be achieved in practice. It is neither permissible for the legislator to determine exactly which programmes and scope of programmes are necessary to fulfil the role of public broadcasting, nor can it be established in advance what financial resources are required to fund the resulting programme needs. Furthermore, if the legislator were to prescribe exact standards for calculating the necessary financial resources, it would also define the way in which public broadcasters must fulfil their mandate; the role of public broadcasters would then no longer amount to the exercise of a freedom, but be reduced to merely implementing a programme imposed by the legislator. This would not be compatible with the freedom guaranteed by Art. 5(1) second sentence GG (cf. BVerfGE 119, 181 <221 f.> with further references; established case-law).

5. The obligation to separate media-policy decision-making that concerns the specifics of the broadcasting mandate, on the one hand, from the process of determining the public broadcasting fee, on the other hand, is not sufficiently effective in and of itself. It must be reinforced by procedural safeguards in particular (cf. BVerfGE 119, 181 <222> with further references; established case-law).

a) It is usually not ascertainable in the process whether improper influence has been wielded with regard to the determination of the public broadcasting fee, nor can such undue influence be discerned from the outcome of the decision; and it is virtually impossible to remedy such shortcomings. In order to avoid undue influence, precautions must be taken to address the causes of relevant risks and to rule out, to the greatest possible extent, the possibility that powers are exercised unlawfully. The process for determining the public broadcasting fee satisfies these constitutional requirements if it ensures that public broadcasters receive the financial resources necessary for fulfilling their broadcasting mandate while upholding their programme autonomy, and if it effectively prevents state influence on public broadcasters’ programming decisions (cf. BVerfGE 119, 181 <222>).

b) The best way to achieve this is by having a multi-stage and cooperative process to ascertain the funding requirements; this process must be designed so as to reflect the particular nature of each individual stage and limit the possibilities of exerting political influence on the process (BVerfGE 119, 181 <222> with further references; established case-law).

The first stage of the process is for the public broadcasters themselves to assess and submit their funding needs. Since it is in principle for the public broadcasters to determine what the broadcasting mandate requires in terms of programming, they must not be limited to a passive role in this process. Rather, it must be ensured that the determination of the funding requirements, and subsequently of the decision on the fee amount, is based on the specific funding needs resulting from the public broadcasters’ programming decisions (cf. BVerfGE 119, 181 <222 f.> with further references; established case-law).

Since the public broadcasting fee is not subject to market price developments that could serve as a corrective in relation to the public broadcasting fee, the second step of the process requires external review of the self-assessments submitted by the public broadcasters, which serves to protect the interest of fee payers. This is because the public broadcasters themselves have own interests in asserting and expanding their role, and it is thus not sufficiently guaranteed that the funding needs submitted by them are indeed limited to what is necessary to fulfil their mandate (cf. BVerfGE 119, 181 <223>).

The Commission carrying out this external review is not authorised to assess the advisability or suitability of the programming decisions taken by the public broadcasters. Its sole remit is to establish whether the programming decisions fall within the scope of the legally defined broadcasting mandate and whether the funding requirements resulting from the programming decisions have been correctly calculated in accordance with the principles of efficiency and economy. Given that this review is not a political but a technical assessment, it is assigned to a body composed of experts (BVerfGE 119, 181 <223>).

The final decision on the broadcasting fee is taken at a third stage. This decision must be based on the reviewed – and if necessary corrected – self-assessments of funding needs submitted by the public broadcasters. How this final determination is made, and by whom, is for the legislator to decide. Yet constitutional law requires that the principles of programme neutrality and of funding in line with programming needs are adhered to in the final decision fixing the public broadcasting fee (cf. BVerfGE 90, 60 <103>; 119, 181 <223>).

c) The multi-stage and cooperative process does not exclude the possibility of deviating from the Commission’s evaluation of the funding requirements. However, such deviations require justification that stands up to the freedom of broadcasting. Deviations on grounds of programming or media-policy considerations are impermissible in this context (cf. BVerfGE 119, 181 <223 f.>). One consideration that may be capable of justifying deviation is that the burden placed on users must be reasonable (cf. BVerfGE 119, 181 <226 ff.> with further references). But any funding limitations derived therefrom can only be effectively implemented if verifiable reasons for such deviations are given. If no reasons are given, it would neither be possible to review whether the state has fulfilled its duty to provide adequate funding under Art. 5(1) second sentence GG nor to uncover and avert interferences with programme autonomy masked by decisions determining the public broadcasting fee (cf. BVerfGE 119, 181 <223 f., 228> with further references; established case-law).

The obligation to state reasons is designed to enable public broadcasters to identify and assess the reasons given [by the Land legislators] for deviating from the Commission’s evaluation of the funding requirements. Thus, this obligation serves to ensure effective protection of the fundamental right under Art. 5(1) second sentence GG (cf. also BVerfGE 119, 181 <227 ff.>). The factual assumptions justifying a deviation must be set out in a comprehensible manner and the assessment related thereto must be disclosed. For instance, it must be clear to what extent the envisaged fee amount imposes an unreasonable burden on fee payers and why a different amount would be justified in that regard. Where corrections of the technical evaluation of the funding requirements as such are sought, the reasons must show clearly that the amount payable according to the fee decision is based on a technically sound and transparent evaluation of funding requirements after this correction, too (cf. BVerfGE 119, 181 <228 f.>).

The legislator fixing the fee cannot refuse to state reasons, as is required by fundamental rights, on the grounds that it is challenging to negotiate a treaty-based agreement on such reasons in advance between all Land governments. Under constitutional law, it would be permissible for the Land legislators to leave the fee amount to be determined by executive ordinance or to make such determination subject to a majority decision taken by the Länder . If they do not make use of these options because the Länder , individually and jointly, want to retain political responsibility for fixing the specific fee amount, they must still comply with the constitutional obligation to state reasons under the more difficult conditions that they themselves have opted for (BVerfGE 119, 181 <224, 229>).

6. With its final decision on the fee amount, the legislator, or the executive body to whom the legislator has delegated the power to fix the fee by ordinance, assumes the necessary political responsibility for this decision. This can also help ensure acceptance of the fee decision by citizens, in particular in that fee payers’ interests have been taken into account in the decision (cf. BVerfGE 119, 181 <226>). It is true that the funding requirements determined by experts must be the basis for the decision on the amount of the public broadcasting fee. However, the assumption of political responsibility for the substantive decision itself requires that the legislator be allowed to deviate from the Commission’s proposal as set out above. When determining the scope of this power to deviate from the proposal, the principle of democracy (Art. 20(1) and Art. 20(2) GG) must be taken into account; at the same time, the procedural fundamental rights protection must not be undermined (cf. BVerfGE 119, 181 <225 f.>). Under the current system, it therefore remains necessary to accord significant weight – going beyond a mere guideline for decision-making – to the Commission’s evaluation of funding requirements. In addition to the obligation to state reasons (§ 7(2) third sentence RFinStV; see para. 97 ff. above), such weight is given to the Commission’s proposal through the requirement, set out in § 7(2) second sentence RFinStV, that the Broadcasting Commission of the Länder discuss intended deviations with the public broadcasters while also involving the Commission for Reviewing and Ascertaining the Funding Requirements (cf. BVerfGE 119, 181 <227 ff.>).

7. Fulfilling the state’s duty to provide funding and giving effect to the corresponding constitutional right of public broadcasters to receive adequate funding under Art. 5(1) second sentence GG – as well as ensuring that the necessary procedural safeguards are observed – is incumbent upon the Länder under the system of federal sharing of responsibility, whereby each Land bears joint responsibility (see para. 68). As a state entity bearing joint responsibility, each Land must fulfil its share of the duty to provide funding and must participate in implementing adequate funding. If a Land does not fulfil its share of the collective responsibility, and if this makes it impossible for the state to satisfy the constitutional right of broadcasters to receive funding, this in itself constitutes a violation of freedom of broadcasting. This is because broadcasting cannot currently be funded across all Länder without approval from each Land . It follows that any justification for not upholding the constitutional right to receive funding must likewise be supported by each Land to be constitutionally tenable. Under the current system agreed upon by the Länder , a single Land cannot simply reject a proposed increase of the public broadcasting fee – especially if the rejection is not justified by tenable reasons.

II.

Based on these standards, Saxony-Anhalt’s failure to approve the First Amending State Media Treaty is incompatible with the complainants’ freedom of broadcasting. This failure violates the freedom of broadcasting under Art. 5(1) second sentence GG in that freedom’s manifestation as a guarantee of adequate funding that enables public broadcasters to perform their tasks.

Whereas the other 15 Länder approved the First Amending State Media Treaty, the Land Saxony-Anhalt failed to do so, thereby preventing the Treaty from entering into force (see 1. below). In the present case, there is no constitutionally tenable justification for the Land ’s failure to approve the State Treaty and thus for the resulting failure to provide broadcasters with the corresponding financial support (see 2. below). The Land Saxony-Anhalt has thus violated the freedom of broadcasting under Art. 5(1) second sentence GG (see 3. below).

1. According to the First Amending State Media Treaty, the public broadcasting fee is to be raised by 86 cents from EUR 17.50 to EUR 18.36 as of 1 January 2021 […]. This increase is based on the evaluation of funding requirements made by the Commission in its 22nd report.

The heads of government of the Länder adopted the First Amending State Media Treaty, including three provisions on financing. This is not altered by the abstention from voting of the Minister-President of Saxony-Anhalt. The other Länder then enacted parliamentary acts or resolutions of approval and deposited the ratification instruments. They have thus satisfied their duty to participate in the securing of adequate financing for the complainants.

However, due to Saxony-Anhalt’s failure to act, as challenged in the present proceedings, the constitutional right of public broadcasters to receive funding cannot be fulfilled as far as the necessary adjustment of the public broadcasting fee is concerned. In particular, Saxony-Anhalt’s parliament did not provide its approval, which – under the current system – would have been necessary pursuant to Art. 69(2) of the Land Constitution of Saxony-Anhalt. The State Treaty therefore could not enter into force and the funding of public broadcasters could not be adjusted as of 1 January 2021. According to the Commission’s calculations, failure on the part of the legislator to adjust the public broadcasting fee would probably result in unmet financial requirements in the amount of EUR 1,525.4 million over the 2021-2024 funding period ([…]).

2. There is no constitutionally tenable justification for Saxony-Anhalt’s failure to approve the State Treaty and for the resulting failure to provide public broadcasters with the corresponding financial resources.

a) Under the current system by which public broadcasting is funded, deviations from the Commission’s evaluation of the funding requirements are only possible with the unanimous consent of all the Länder (cf. BVerfGE 119, 181 <229>). If a Land considers a deviation necessary, that Land is responsible for bringing about agreement between all the Länder concerning the proposed deviation from the Commission’s evaluation of the funding requirements. This was not done in the present case.

Insofar as the Land Saxony-Anhalt refers to the Minister-President’s declaration to the President of the Landtag of 8 December 2020 and the letter of 10 December 2020 sent by the Head of the State Chancellery of Saxony-Anhalt to the other Länder explaining the retraction of the bill, this was insufficient. Each individual Land that considers a deviation from the Commission’s evaluation to be necessary is responsible for bringing about agreement between all the Länder concerning the proposed deviation (cf. BVerfGE 119, 181 <229>).

b) There is also no verifiable and constitutionally tenable justification for deviating from the Commission’s evaluation. Under the system currently agreed upon by the Länder , any justification would need to be supported by all the Länder to be constitutionally permissible. In substantive terms, too, the Land Saxony-Anhalt’s argument that it had for years been trying in vain to persuade the other Länder to agree to structural reforms of public broadcasting does not justify deviating from the evaluation of funding requirements. Such deviation is precluded by the principle of keeping general broadcasting legislation separate from the process of determining the public broadcasting fee (cf. BVerfGE 90, 60 <93 ff.>). This principle is designed to prevent any risk of indirect influence being exerted on how the programming mandate is carried out, thereby protecting the public broadcasters in their programming freedom (cf. BVerfGE 119, 181 <220 f.>). It is in principle permissible for the legislator to indirectly influence the funding requirements of public broadcasting through its decisions regarding the type and number of public broadcasters and programmes to be provided. However, in this regard, the Land Saxony-Anhalt approved the State Media Treaty, which lays down the number of TV and radio stations in its §§ 28 and 29, without any objections. The adoption of the State Media Treaty was not tied to any plans to structurally reform the public broadcasters or to reduce the scope of programming on offer ([…]), and it would be constitutionally impermissible to pursue such objectives via the determination of the public broadcasting fee.

Insofar as the Land Saxony-Anhalt was aiming to draw attention to further pandemic-related circumstances that might be relevant for determining the broadcasting fee, it did not sufficiently demonstrate factual assumptions that could justify a deviation, nor did it explain what conclusions it had drawn therefrom (cf. BVerfGE 119, 181 <228 f.>).

3. By failing to approve the Amending State Media Treaty without constitutionally tenable justification, the Land Saxony-Anhalt did not fulfil its share of the joint responsibility incumbent upon the Länder to guarantee the funding of public broadcasting, thus violating Art. 5(1) second sentence GG.

III.

1. In view of the constitutional right of public broadcasters to receive adequate funding, and the failed attempt to adjust the public broadcasting fee, the Federal Constitutional Court must provide an interim legal framework under § 35 BVerfGG in order to prevent further serious infringements of the freedom of broadcasting until new State Treaty provisions have entered into force (cf. BVerfGE 48, 127 <184>; 84, 9 <21>; 121, 317 <376>; 130, 131 <150 f.>). The Court has opted for the natural solution in this case, which is to provide for a transitional period in which adjustment of the public broadcasting fee is made in accordance with Art. 1 of the First Amending State Media Treaty. Such a preliminary adjustment is in line with the Commission’s evaluation of funding requirements; there is no reason to deviate from this evaluation as no verifiable and constitutionally tenable justification for a deviation has been provided so far.

Following the concept developed by the legislator fixing the public broadcasting fee, the Court declares Art. 1 of the First Amending State Media Treaty to be applicable with effect from 20 July 2021. […]

2. The Court has refrained from ordering an increase in the public broadcasting fee with retroactive effect from 1 January 2021. The effects of the failure to adjust the fee on public broadcasters can be assessed using the process agreed in the State Treaty. It should however be noted that under the current system, this will require a statement by the Commission and a new amendment treaty adopted with the unanimous approval of the Länder pursuant to § 7(2) RFinStV that must guarantee the full and proper functioning of the public broadcasters under Art. 5(1) second sentence GG.

Compensation requirements arising from the challenged failure to adjust the fee will have to be taken into account in this regard. It is true that, given the time-sensitive nature of broadcasting, a possible deterioration of the programme offer caused by lack of sufficient funds cannot simply be compensated by retroactively providing additional financial resources (cf. BVerfGE 119, 181 <241>). Once a programme affected by such deterioration has been broadcast, this can no longer be rectified by additional financial resources provided at a later time. By contrast, deferred investments, for instance, may require compensation (cf. BVerfGE 119, 181 <242>). Compensation may also be required in cases where public broadcasters managed to prevent a deterioration of their programme offer, and thus actually provided the necessary programmes in full, even though they lacked sufficient financial resources to do so. Where public broadcasters provide such programmes despite being underfunded, as an “advance service” and by temporarily using financial resources not intended for this purpose, additional compensatory funding in later periods is possible (cf. BVerfGE 119, 181 <241 f.>; Federal Constitutional Court, Order of the First Senate of 22 December 2020 - 1 BvR 2756/20 inter alia -, para. 6).

In the present case, the complainants stated that they managed to realise their programming mandate in full, and will continue to do so in 2021, despite the missing revenue from the envisaged adjustment of the public broadcasting fee. The complainants also made submissions concerning the temporary use of funds. They stated that they had deferred investments and used existing cash reserves that would normally be used in the second half of the funding period to compensate for inflation. With reference to the evaluation of funding requirements made in the Commission’s 22nd report, the complainants stated that they could only realise their full programming mandate without additional financial resources, as an “advance service”, for a limited time. Only for the 2021 financial year was it still possible for them to prevent cuts in the programme on offer through the above-mentioned measures.

In light of this, the complainants are in principle entitled to additional compensatory funding. When the public broadcasting fee is next adjusted, the legislator must take the need for compensation into account. The additional funding required by the public broadcasters as a result of investments being postponed and essential reserves being used up will have to be taken into consideration. It will also be necessary to examine how the COVID-19 pandemic might have affected the public broadcasters’ funding needs and whether fee increases would be reasonable for the general public.

D.

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