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|The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.|
|Please cite the abstract as follows:|
|Abstract of the German Federal Constitutional Court’s Order of 22 August 2012, 1 BvR 199/11 [CODICES]|
|When referring to the original decision, please follow the suggested form of citation for decisions of the Court.|
|Second Chamber of the First Senate|
Order of 22 August 2012
1 BvR 199/11
The duty to pay licence fees for Internet-enabled PCs does not violate any fundamental rights.
The operators of suitable receiving devices (largely television and radio sets) are obliged by law in Germany to pay radio and television licence fees. These fees are used to finance the public service broadcasting corporations.
The applicant is a lawyer and uses the PC in his firm amongst other things for Internet applications. He does not use it to receive television and radio broadcasts, and does not have any traditional television or radio devices.
The broadcasting corporation imposed licence fees for the Internet-enabled PC. The Federal Administrative Court rejected the applicant’s appeal in the last instance.
The Federal Constitutional Court did not accept the constitutional complaint against the judgment of the Federal Administrative Court for adjudication because the prerequisites for its acceptance are not met. The applicant’s fundamental rights have not been violated by the levying of licence fees for his Internet-enabled PC.
In essence, the decision is based on the following considerations:
1. The impugned ruling does not violate the applicant’s right to freedom of information. It is true that the licence fee impairs the applicant’s acquisition and accepting of information from the Internet . This encroachment is however constitutionally justified.
The licence fee for Internet-enabled PCs is based on a formally constitutional law under the legislative powers of the German federal states (“Länder”). It is not a tax. Rather, the fee is a charge in return for a benefit received (“Vorzugslast”), i.e. a public charge serving to compensate for benefits received through a public facility or activity.
The fee is linked to the status of being part of the television or radio audience. This status arises through the possession of a television or radio receiver. The material provisions of the Inter-State Broadcasting Licence Fees Treaty (Rundfunkgebührenstaatsvertrag) do not breach the principle of certainty of the law.
The obligatory licence fee for Internet-enabled PCs is not disproportionate. It serves to finance public service broadcasting. The levying of the fee is suitable and necessary to achieve this goal. Access barriers are not as effective a method. Their protection against evasion is subject to doubt. In addition, they would clash with the universal service mandate of public service broadcasting. Levying licence fees for Internet-enabled PCs is furthermore not inappropriate. The applicant is not directly prevented from obtaining information from the other sources on the Internet, but only incurs a relatively modest access fee that merely slightly impairs the freedom of information and is offset by an important benefit, i.e. the safeguard of public service broadcasting.
2. The obligatory levy on the Internet-enabled PC which is used as a work tool does not constitute an encroachment on the applicant’s occupational freedom. This is already the case because there is no direct relationship with the applicant’s work or an objective tendency to regulate an occupation or profession.
3. Furthermore, there is no violation of the general principle of equality. The equal treatment of owners of traditional and new types of television or radio receivers is based on a sensible, plausible foundation. It serves to counter a threat of “flight from the licence fee”, and hence to guarantee that public broadcasting is adequately financed to fulfil its mission. What is more, the unequal treatment of the owners of Internet-enabled PCs vis-à-vis persons without a receiving device is justified. The advantage of use from owning a receiving device constitutes an objective criterion for differentiation.