Successful constitutional complaints regarding the First Amended State Media Treaty

Press Release No. 69/2021 of 05 August 2021

Order of 20 July 2021
1 BvR 2756/20, 1 BvR 2777/20, 1 BvR 2775/20

In a decision published today, the First Senate of the Federal Constitutional Court held that by failing to approve the First Amended State Media Treaty (Erster Medienänderungsstaatsvertrag), the Land Saxony-Anhalt violated the freedom of broadcasting enjoyed by public broadcasting organisations under Art. 5(1) second sentence of the Basic Law (Grundgesetz – GG). The provisions under Art. 1 of the First Amended State Media Treaty – with the adjustment of the public broadcasting fee contained therein – are to be applied provisionally with effect from 20 July 2021 until new State Treaty provisions governing the adequate funding of broadcasters ARD, ZDF and Deutschlandradio have entered into force.

Facts of the case:

The public broadcasting fee is determined in a three-stage process. In the first stage, the public broadcasting organisations submit their funding requirements based on their programming decisions. In the second stage, a commission for reviewing and ascertaining the funding requirements of public broadcasting organisations – the KEF (hereinafter: the Commission) – examines whether the programming decisions fall within the scope of the broadcasting mandate and whether the ensuing funding requirements have been calculated in accordance with the principles of efficiency and economy. In a third stage, the Länder determine the fee. The governments and parliaments of the Länder base their decision-making on the fee proposed by the Commission.

For the 2021-2024 funding period, the Commission proposed raising the monthly public broadcasting fee by 86 cents from EUR 17.50 to 18.36 as of 1 January 2021. At the same time, the Commission recommended changing how the income from the broadcasting fee is distributed between 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 ARD’s internal financial equalisation scheme. The Commission’s proposals were incorporated into the First Amended State Media Treaty, which was signed in June 2020 by all the heads of the Land governments – with a protocol note from the Minister-President of Saxony-Anhalt. The State Treaty provided for the amendments to enter into force on 1 January 2021. Over the course of 2020, the respective legislative bodies in 15 Länder granted approval for transposing the First Amended State Media Treaty into Land law. The only Land not to have approved the First Amended State Media Treaty by 31 December 2020 was Saxony-Anhalt. This prevented the State Treaty from entering into force.

The complainants assert that their freedom of broadcasting under Art. 5(1) second sentence GG has been violated because Saxony-Anhalt’s failure to grant approval has obstructed their constitutional right to receive adequate funding.

Key considerations of the Senate:

The constitutional complaints are successful.

A. The constitutional complaints are admissible.

It is possible to challenge a public authority’s failure to act by way of a constitutional complaint, on condition that a corresponding duty to act can be derived from the Basic Law. The corresponding duty in this case arises from the freedom of broadcasting – a duty which under the current system is also incumbent upon each individual Land. The state has a duty to provide public broadcasters with adequate funding, corresponding with the public broadcasters’ constitutional 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 a federal sharing of responsibility (föderale Verantwortungsgemeinschaft), whereby each Land bears joint responsibility. One special feature of this federal sharing of responsibility is that while the Länder are responsible for passing legislation on the funding of public broadcasting, the way in which public broadcasting is currently organised and financed means that only inter-Land (i.e. nationwide) legislation can give effect to the fundamental rights protection afforded under Article 5(1) second sentence GG. Provisions in the State Treaty of the Länder on the Financing of Public Broadcasting (Rundfunkfinanzierungsstaatsvertrag) concerning adjustments to the public broadcasting fee can only enter into force with the unanimous approval of all the Länder – something that must currently be reaffirmed with each new adjustment due to the lack of any other agreement. Within the federal sharing of responsibility, the Länder have to ensure that public broadcasting is properly funded. Each Land therefore has a specific constitutional duty to act.

B. The constitutional complaints are well-founded. The failure of the Land Saxony-Anhalt to approve the First Amended State Media Treaty 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 public broadcasters to perform their role.

I. Public broadcasting organisations have a constitutional right to receive funding. The task of fulfilling this right is incumbent upon the Länder as a 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. The mandate to guarantee freedom of broadcasting, enshrined in Art. 5(1) second sentence GG, is aimed at ensuring that the diversity of existing opinions is represented in broadcast media with the greatest possible breadth and completeness. In this regard, fee-funded public broadcasters are required to provide genuine, thoroughly researched information that distinguishes between fact and opinion, avoids distorting reality and does not focus on the sensational but rather serves as a counterweight that safeguards diversity and provides guidance. 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 hand.

2. The legislator must ensure that the necessary technical, organisational, staffing and financial requirements are met in order for public broadcasters to fulfil their traditional mandate. The process of determining the public broadcasting fee must not be influenced by media-policy priorities. The legislator must take substantive, procedural and organisational precautions to ensure that the process of determining the fee does not jeopardise freedom of broadcasting but rather helps public broadcasters to fulfil their functional mandate by providing them with adequate funding to cover their needs. The principle of keeping general broadcasting legislation separate from the process of determining 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.

3. The obligation to separate the media-policy process of specifying the broadcasting mandate, on the one side, from the process of determining the public broadcasting fee, on the other side, must be reinforced by procedural safeguards in particular.

a) The best way to achieve this is by having a multi-stage and cooperative process to ascertain the funding requirements. The first stage of the process is for the public broadcasters themselves to assess and submit their funding needs. In the second stage, these self-assessments are subjected to external review. 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 derived from the programming decisions have been accurately calculated in accordance with the principles of efficiency and economy. 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 requirements submitted by the public broadcasters.

b) The multi-stage and cooperative process does not exclude the possibility of deviating from the Commission’s evaluation of the funding requirements. Deviations on grounds of programming or media policy are impermissible, however. One consideration still capable of justifying deviation is that the burden placed on consumers must be appropriate. But any resulting protective limitations can only be effectively implemented if verifiable reasons for such deviations are given.

4. The task of fulfilling the public broadcasters’ constitutional right to adequate funding under Art. 5(1) second sentence GG – and of ensuring that the necessary procedural safeguards are observed – is incumbent upon the Länder as a federal sharing of responsibility, whereby each Land bears joint responsibility. If a Land does not fulfil its share of the collective responsibility and the constitutional right to funding becomes impossible to satisfy as a result, this in itself constitutes a violation of freedom of broadcasting. This is because broadcasting cannot presently be funded at the inter-Land (i.e. nationwide) level without approval from all the Länder. It follows that any justification for not fulfilling the constitutional right to funding must likewise be supported by all the Länder in order to be constitutionally tenable. Under the current system agreed upon by the Länder, it is not sufficient for one single Land to refuse to increase the fee – especially not without tenable justification.

II. The Land Saxony-Anhalt’s failure to approve the First Amended State Media Treaty is incompatible with the freedom of broadcasting enjoyed by the complainants under Art. 5(1) second sentence GG.

1. Whereas the other 15 Länder approved the First Amended State Media Treaty, the Land Saxony-Anhalt failed to do so, thereby preventing the Treaty from entering into force.

2. 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.

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. 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 achieved.

b) Nor is there any 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 in order to be constitutionally permissible. 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 the funding requirements. The State Media Treaty’s adoption was not tied to any plans to structurally reform the public broadcasting organisations 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 identify further pandemic-related conditions that might be relevant for determining the broadcasting fee, it did not sufficiently describe any factual circumstances that could justify a deviation, nor did it explain what conclusions it had drawn therefrom.

III. Art. 1 of the First Amended State Media Treaty is to be provisionally applicable with effect from 20 July 2021 until new State Treaty provisions have entered into force.

1. Until new State Treaty provisions have entered into force, there is a need for the Federal Constitutional Court to provide an interim legal framework under § 35 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) in order to prevent further serious infringements of the freedom of broadcasting. The Court has opted for the obvious solution in this case, which is to provide for a transitional period in which the public broadcasting fee is adjusted in accordance with Art. 1 of the First Amended State Media Treaty.

2. The Court has refrained from ordering an increase in the public broadcasting fee with retroactive effect from 1 January 2021. An assessment of how the failure to adjust the fee has affected the public broadcasting organisations can be carried out using the process agreed in the State Treaty. It should however be noted that under the current system, this would require a statement by the Commission and a new Amended State Treaty adopted with the unanimous approval of the Länder. Compensation requirements arising from the failure to adjust the fee would have to be taken into account. The complainants are generally entitled to such additional compensatory funding. When the public broadcasting fee is next determined, 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 requirements and whether fee increases would be reasonable (zumutbar) for the general public.