Provisions on public broadcasting fees for primary residences and in the commercial and non-private sector are constitutional 

Press Release No. 59/2018 of 18 July 2018

Judgment of 18 July 2018
1 BvR 1675/16, 1 BvR 981/17, 1 BvR 836/17, 1 BvR 745/17

The levying of public broadcasting fees (Rundfunkbeitrag) for private dwellings and in the commercial and non-private sector is for the most part compatible with the Constitution. The levying of public broadcasting fees for secondary dwellings is, however, not compatible with the general guarantee of the right to equality. This is what the First Senate of the Federal Constitutional Court held in its judgment pronounced today concerning the constitutional complaints of three private persons and one company liable to pay fees. At the same time, the Court declared the statutory provisions on broadcasting fees for secondary dwellings incompatible with the Basic Law. The Senate requires that the competent Land legislatures enact new provisions in this regard by 30 June 2020. According to the judgment, it does not conflict with the Basic Law to levy, as a contribution to the costs of a public institution, fees from those persons who – potentially – have an advantage from using this institution. In the case of the public broadcasting fee, this benefit is the possibility of using public broadcasting services. It is not relevant whether the person liable for the fee disposes of a receiving device or intends to use the broadcasting services. In respect of private dwellings, the liability to pay public broadcasting fees may be made subject to occupying a dwelling, because this is where broadcasting services are typically used. Persons occupying several dwellings, however, may not be burdened with paying more than one fixed-amount public broadcasting fee.

Facts of the case:

Three of the constitutional complaints on which the decision is based challenge the levying of public broadcasting fees for private dwellings, with one of the complainants challenging in particular the levying of fees for secondary dwellings. The fourth constitutional complaint, lodged by a car rental company, challenges the levying of public broadcasting fees in the commercial and non-private sector, in particular the payment of additional fees for motor vehicles.

Key considerations of the Senate:

The liability for public broadcasting fees of occupants of primary dwellings, occupants of permanent commercial or non-private establishments (Betriebsstätten), as well as proprietors of motor vehicles not exclusively used for private purposes, is in compliance with the Constitution.

I. With the exception of the public broadcasting fees levied on secondary dwellings, the design of public broadcasting fees levied on private dwellings is constitutional.

1.  The Länder possess legislative competence with regard to the levying of public broadcasting fees, since the public broadcasting fee is not a tax but a fee within the meaning of the constitutional provisions governing public finances that is levied for the potential use of a public service, i.e. the possibility of using broadcasting services. The competence to impose such non-tax levies is derived from the competence for the respective subject matter – in the present case, the Länders’ competence with regard to broadcasting services.  

2.  Substantively, the liability to pay public broadcasting fees for primary dwellings is also compatible with the Constitution. In particular, it complies with the requirements of the general guarantee of the right to equality under Art. 3(1) of the Basic Law (Grundgesetz – GG).

a) The public broadcasting fees compensate an individual benefit which is objectively linked to the factual occupancy of a dwelling. The individual benefit lies in the possibility of using public broadcasting which provides broadcasting services not completely subject to economic competition, ensures the diversity of broadcasting coverage, and offers guidance through authentic, thoroughly researched information. Any person able to access - not necessarily actually accessing - public broadcasting services must contribute to the financing thereof.  

b) By tying the public broadcasting fee to the occupancy of a dwelling, the Länder legislatures have defined the group of beneficiaries in a way that is not objectionable under constitutional law. In doing so, the legislatures stay within the wide scope of discretion granted to them with regard to the design of the fees. This is based on the consideration, supported by statistical surveys, that the recipients of the offered programming typically receive the broadcasting in their dwellings. Therefore, the occupancy of such a spatial unit allows drawing sufficient inferences regarding the possibility of using the services as the benefit to be compensated. This legislative decision is, in principle, permissible under constitutional law. The legislature is not required to choose a factual standard, but may also choose a substitute standard or standard of probability and thus focus on the principal use in a dwelling.

c) By contrast, it is not relevant whether receiving devices are in fact installed in each dwelling for which public broadcasting fees are due. The legislatures may provide for the levying of the fee regardless of the existence of a receiving device. What is relevant is that a realistic possibility exists that public broadcasting services may be used. This possibility exists because the persons owing the fee can receive the services anywhere in Germany by purchasing suitable receiving devices. In cases where it is factually impossible to receive public broadcasting services by any means of transmission, an exemption shall be granted upon application pursuant to § 4(6) first sentence of the State Treaty of the Länder on Public Broadcasting Fees (Rundfunkbeitragsstaatsvertrag – RBStV). Furthermore, tying the liability for payment of a fee to the possession of a receiving device was not practicable any longer. Particularly in view of the diversification of reception devices, effective controls were hardly possible any more.

d) It is also irrelevant whether individuals owing the fee deliberately refrain from receiving public broadcasting services, because the possibility of access exists irrespective of the recipient’s intent.

e) In principle, the assessment of the public broadcasting fees for private dwellings creates equal burdens. 

aa) When fixing the public broadcasting fees as of 1 January 2013, the legislatures did not exceed their existing broad leeway. The Länder based the fixing of the public broadcasting fees on the calculations of the Commission on the Determination of the Financial Needs of the Public Broadcasting Corporations. The actual surplus revenue from the public broadcasting fees was not considerably higher than the revenue projected by the Commission. Furthermore, at the end of the period for which the fees are charged, surpluses are deducted from the next period’s budget. Ultimately, what is significant under constitutional law is that the fees are not levied for purposes other than the funding of the functioning of public broadcasting including the tasks under § 40(1) of the State Treaty of the Länder on Public Broadcasting (Rundfunkstaatsvertrag – RStV).

bb) Levying fixed-amount public broadcasting fees per dwelling does not violate the principle of equal burdening. The public broadcasting fees offset an equivalent service provided by the state, i.e. an extensive offering in the form of general programming, special-interest programming and additional offerings, educational programming, various radio programming and tele-media offerings. 

The fact that several occupants of a dwelling may split the fee among themselves so that their burden is less than that of one individual person does constitute unequal treatment, but is based on factual reasons that still meet the constitutional requirements. The Land legislatures base the levying of public broadcasting fees per dwelling on the fact that the private household, due to the diversity of modern ways of life, often reflects social units where people live together and typically use the broadcasting offerings in the shared dwelling. The legislature may proceed on the basis of this social reality. Moreover, the social units are in many cases subject to the protection under Art. 6(1) GG. The levying is covered by the broad margin of appreciation of the Land legislatures. The unequal treatment can also be tolerated because the unequal burden does not exceed the extent accepted by the Federal Constitutional Court in similar cases. The service of public broadcasting programming is equivalent to the amount of the fee even if the occupant of a one-person household is liable to pay the full fixed-amount.

II. In contrast to this, the fixing of the fees for secondary dwellings violates the principle of equal burdening derived from Art. 3(1) GG.

If the occupant of a dwelling has already been charged to pay public broadcasting fees for one dwelling in accordance with the current provisions, the benefit has already been paid for; occupants of secondary dwellings would be made to pay more than once for the same benefit. The provision cannot be justified on the basis of administrative simplification because the relevant information is transmitted to the public broadcasting corporations and the occupant’s obligation to notify may be extended to cover information on primary and secondary dwellings. Nor can the provision be justified on the basis of the risk of abuse or circumvention, because persons occupying a dwelling as their primary residence are liable for payment irrespective of whether they live together with other persons, for whom it is their secondary dwelling. Occupants of primary dwellings, too, can illegally evade the payment of fees by violating the law on registration; in such a case, however, intentionally wrongful statements can be prosecuted as an administrative or even as a criminal offence.

However, when they enact new provisions, the legislatures may take precautions to keep the administrative burden of accounting for secondary dwellings within reasonable limits. They may, for instance, make the exemption from public broadcasting fees for secondary dwellings subject to an application and to providing proof that the primary and secondary dwellings are registered. In this context, the legislatures may also deny exemptions to those occupants of secondary dwellings who fail to provide proof of payment of the full amount of the public broadcasting fee for the primary dwelling by themselves. However, the same person may not be charged more than a maximum of one full fee for the possibility of privately using the public broadcasting services. 

III. In the commercial and non-private sector, neither the liability for public broadcasting fees for permanent commercial or non-private establishments (Betriebsstätten) nor the liability for public broadcasting fees for motor vehicles not exclusively used for private purposes violates the principle of equal burdening.

1. The possibility of receiving public broadcasting services offers a benefit to the proprietors of permanent establishments. They can obtain information for their establishment from public broadcasting and use it to inform or entertain their employees or customers.  

2. An additional economic benefit for proprietors of permanent establishments is that they can receive broadcasting services in commercially or non-privately used motor vehicles. In the case of companies whose economic activity mainly consists in the use of motor vehicles, this benefit of use becomes their main benefit. In the case of rental cars, the benefit consists in the possibility of receiving public broadcasts which is relevant for the rental price.   

3. The legislatures have covered the entirety of these additional benefits in a constitutional manner. The benefit can be attributed to the proprietors of permanent establishments and commercially used motor vehicles. The specific structure of the fee schedule for permanent establishments and motor vehicles complies with the principle of equal burdening.

a) The State Treaty of the Länder on Public Broadcasting Fees bases the amount of the fee on the number of persons employed, except the proprietor, in the respective permanent establishment, applying a degressive scale as the burden increases. This basis is fair with regard to the benefit gained. It does not constitute a violation of the principle of equality that the amount to be paid is determined on the basis of the number of permanent establishments among which employees are distributed, which may lead to differing fee amounts for businesses with an equal total number of employees. The Land legislatures were allowed to tie the liability for payment of fees to the permanent establishment as the place where public broadcasting services are typically used. They were also allowed to measure the benefit related to the size of the permanent establishment by way of degressive scaling based on the number of persons employed in a permanent establishment. 

In this context, it is immaterial that compared to the total number of persons employed in a company, the amount of fees charged can vary, because the legislatures did not take the number of employees of a company as the basis for fixing the amount of broadcasting fees, but rather the number of employees of permanent establishments. 

b) The proprietor of commercially-used vehicles is required to pay one third of the public broadcasting fee for each registered vehicle. One vehicle in each of the proprietor’s permanent establishments for which fees are due is exempt. This additional liability to pay a fee is also fair with regard to the benefit gained. The Land legislatures were also allowed to levy a (partial) fee on motor vehicles, as places where public broadcasting services are typically used intensively, so as to include operators without permanent establishments. In particular, the legislatures were not required to differentiate between those vehicles the proprietor of the permanent establishment uses directly for operational purposes and those that are rented to customers. The legislatures were not required to reflect this distinction in differing fee schedules. Rather, they were allowed to limit themselves to distributing the burden on three different types of use in permanent establishments, in order to account for the various ways of using public broadcasting services in a commercial or non-private environment and to establish an appropriate burden for the permanent establishments.  

As a car rental company, the complainant in the proceedings 1 BvR 836/17 profits from the communicational use of its customers insofar as it can rent out vehicles offering public broadcasting services at a higher price or rent them out at all. This benefit is not covered by the fees paid for a permanent establishment, so that the legislatures can classify it as a service for which, in return, (one third of) a fee is due.

c) Finally, the levying system for public broadcasting fees in the commercial and non-private sector complies with the principle of equal burdening. The public broadcasting corporations have sufficient means to determine the facts relevant to assessing the fee, and they make use of them. A structural deficit with regard to the levying of fees is not apparent.

IV. For the rest, too, the liability to pay public broadcasting fees is in compliance with the Constitution.

1. The fundamental right to freedom of information following from Art. 5(1) first sentence, second half sentence of the Basic Law protects both the use of generally accessible sources of information and also the individual decision to use such sources of information. The aspect of being able to choose is the basic constituent element of any information. Whether the fundamental right to freedom of information additionally has a negative dimension that equally provides protection from information that is forced upon a person against their will, or whether in this regard the scope of protection of Art. 2(1) GG is applicable, is not for the Court to decide in this case. The liability to pay broadcasting fees does not constitute a forced confrontation with the information disseminated via public broadcasting, so that in any case there is no interference.

2. Nor is there a violation of the requirement of specificity in the fact that the amount of the public broadcasting fee is not regulated in the State Treaty of the Länder on Public Broadcasting Fees but in the State Treaty of the Länder on the Financing of Public Broadcasting (Rundfunkfinanzierungsvertrag). The purpose of a law can become apparent from the wording of the law in conjunction with the legislative materials, and it can also arise from the link between the law and the area of life it seeks to regulate. The amount of the public broadcasting fees is common knowledge and can also be found in the freely accessible information provided by the ARD ZDF Deutschlandradio Beitragsservice. In addition, the explanatory memorandum to the State Treaty of the Länder on Public Broadcasting Fees expressly refers to the existing assessment procedure stipulated in the State Treaty of the Länder on the Financing of Public Broadcasting. 

V. For the rest, the challenged decisions do not raise constitutional objections. They do not deny the complainants their right to one’s lawful judge. In particular, there is no violation of Art. 101(1) second sentence GG in the failure of the Federal Administrative Court to initiate a procedure for a preliminary ruling pursuant to Art. 267(3) TFEU concerning the question of whether the switch from a system of public broadcasting charges (Rundfunkgebühren) to one of broadcasting fees (Rundfunkbeitrag) constituted a redesign of an aid scheme requiring notification to the European Commission. The Federal Administrative Court neither failed to recognize a probable duty of referral nor did it deliberately deviate from the case-law of the Court of Justice of the European Union. It could reasonably proceed on the assumption that the legal situation regarding the duty of notification has been settled in a way that leaves no reasonable doubt. According to this case-law, the original provision is only transformed into a new aid scheme by the amendment if it considerably deviates from the provision approved in the authorizing decision, in particular if the amendment affects its core. On this basis, the Federal Administrative Court did not affirm the existence of a settled legal situation arbitrarily or without plausible reasons. It is not objectionable that the Federal Administrative Court held that there was no change to the core of the scheme, because the public broadcasting fees, like the previous charges, are levied in return for public broadcasting programming in order to ensure funding of the public broadcasting service in a manner that is needs-oriented and detached from state authority. The fact that additional persons are now also liable for payment of the fee although they do not possess a receiving device was not considered significant by the Federal Administrative Court, given their small share of the overall volume. This is reasonable. 

VI. The legislatures must enact new provisions by 30 June 2020 at the latest. From the day this judgment is pronounced and until new provisions are in place, persons who pay their public broadcasting fees for their primary dwelling must, upon application, be exempted from payment of fees for additional dwellings. Those persons who have already initiated legal proceedings that have not been finally decided can file such an application retroactively. Notices of assessment that became final prior to the pronouncement of this judgment remain unaffected.