Order of 23 July 2025

R e a s o n s :

A. 

1

With its constitutional complaint, Rundfunk Berlin-Brandenburg (rbb), a public broadcaster, challenges the acts of approval of the Länder Berlin and Brandenburg of the State Treaty concluded in November 2023, which provides a new legal framework for rbb.

I. 

2

1. The Länder Berlin and Brandenburg signed the State Treaty on Rundfunk Berlin-Brandenburg (rbb State Treaty) on 3 and 17 November 2023, respectively. Pursuant to its § 53(2), this agreement replaces the previous State Treaty on the Establishment of a Joint Public Broadcasting Corporation for the Länder Berlin and Brandenburg of 25 June 2002 (Law and Ordinance Gazette, Gesetz- und Verordnungsblatt – GVBl Berlin p. 331; GVBl Brandenburg I p. 138) in the version of the First State Treaty of 30 August/11 September 2013 Amending the State Treaty on the Establishment of a Joint Public Broadcasting Corporation for the Länder Berlin and Brandenburg (GVBl Berlin p. 635; GVBl Brandenburg I no. 41 p. 2; […]).

3

The Land Brandenburg approved the rbb State Treaty through § 1 of the Act of the Land Brandenburg Concerning the State Treaty on Rundfunk Berlin-Brandenburg (rbb State Treaty) of 15 December 2023 (GVBl Brandenburg Part I no. 27), which entered into force on 16 December 2023. The Land Berlin approved the rbb State Treaty through § 1 of the Act Concerning the State Treaty on Rundfunk Berlin-Brandenburg (rbb State Treaty) of 20 December 2023 (GVBl Berlin p. 422), which entered into force on 24 December 2023. After the exchange of the instruments of ratification, the rbb State Treaty entered into force on 1 January 2024 in accordance with its § 53(1) (cf. GVBl Berlin p. 11; GVBl Brandenburg I 2024 no. 1).

4

In recasting the legal framework for rbb through the new rbb State Treaty, the Land legislators intended to address shortcomings at rbb which came to light in 2022 and to counteract structural flaws. The legislators also sought to ensure better scrutiny, greater efficiency, clearer decision-making processes, an effective compliance system and the greatest possible degree of transparency in the organisation of rbb (cf. Landtag document, Landtagsdrucksache – LTDrucks Berlin 19/1311, p. 52 f.; LTDrucks Brandenburg 7/8689, reasoning p. 1 f.). Abolishing the strict principle of sole decision-making authority for the Director-General (Intendanz) and transitioning to a board of directors were measures intended to streamline the executive structure and make it more collegial (cf. LTDrucks Berlin 19/1311, p. 53; LTDrucks Brandenburg 7/8689, reasoning p. 2). Further quality assurance was also expected, in that the State Treaty for the first time lays down duties of care and liability rules for members of the supervisory bodies and the Director-General. Numerous disclosure and publication requirements were introduced in view of the great importance of transparency in the organisation of rbb, which follows from rbb’s public mandate and its funding by the general public (cf. LTDrucks Berlin 19/1311, p. 52; LTDrucks Brandenburg 7/8689, reasoning p. 1). Moreover, the regionality of rbb was to be guaranteed by an appropriate distribution of resources and locations (cf. LTDrucks Berlin 19/1311, p. 53; LTDrucks Brandenburg 7/8689, reasoning p. 1)

5

2. The complainant – rbb – challenges various provisions of the rbb State Treaty.

6

a) § 2(3) of the rbb State Treaty determines the minimum number of locations for both regional broadcast studios and regional offices of rbb. Regional broadcast studios are units with full daily editorial operations and their own production facilities, while the smaller regional offices are assigned to an editorial department and are primarily responsible for the daily production of regional radio news. […]

7

The legislative aim pursued with this provision is to strengthen the regional ties of rbb in the territory of Brandenburg, which should also be reflected in the range of programmes, without jeopardising the overriding objective of providing equal services in Berlin and Brandenburg (cf. LTDrucks Berlin 19/1311, p. 55; LTDrucks Brandenburg 7/8689, reasoning p. 4).

8

b) § 4(2) no. 1 and § 4(4) first sentence of the rbb State Treaty provide that separate TV programmes for Berlin and Brandenburg must be run for at least 60 minutes of the daily programme so as to present the two Länder For these separate Land programmes, § 4(4) third and fourth sentence of the rbb State Treaty provides for an additional level of management that directly reports to the Programme Director for these separate Land programmes.

9

[…]

10

c) For the first time, the State Treaty introduces a provision (§ 8(3)) requiring the public advertising of open positions at rbb, without exception. This serves to ensure a more transparent human resources policy (cf. LTDrucks Berlin 19/1311, p. 61; LTDrucks Brandenburg 7/8689, reasoning p. 9). […]

11

d) § 16(3) and (4) of the rbb State Treaty establishes liability for members of the Broadcasting Council and the Administrative Council vis-à-vis rbb for damages resulting from the culpable breach of their duties. Actions that could reasonably be considered to benefit rbb on the basis of suitable information do not constitute such a breach of duty; the members of the supervisory bodies bear the burden of proof in this regard. Liability for ordinary negligence is excluded. Any liability insurance taken out by rbb for the members of the supervisory bodies must include an appropriate deductible, which must be at least the amount of their annual compensation or remuneration.

12

[…]

13

e) § 31 of the rbb State Treaty governs liability of the Director-General for damages resulting from the culpable breach of his or her duties. In this case, too, no breach of duties can be established when the Director-General could reasonably assume that his or her actions would benefit rbb, with the burden of proof borne by the Director-General. He or she is not liable for ordinary negligence. The insurance deductible for the Director-General must amount to at least ten percent of the damage and may not exceed his or her annual fixed remuneration.

14

[…]

15

f) § 15 nos. 3 and 4 of the rbb State Treaty provide for the appointment of a Board of Directors as an executive body in addition to the Director-General, who previously had sole responsibility for managing rbb. The division of tasks between the Director-General and the newly created Board of Directors is set out in §§ 30 and 33 of the rbb State Treaty.

16

Pursuant to § 30(1) of the rbb State Treaty, the Director-General is responsible for managing rbb. He or she represents rbb in and out of court in accordance with § 30(2) first sentence of the rbb State Treaty. His or her tasks include, in particular, setting targets and reporting on their achievement (cf. § 30(3) in conjunction with § 3(7) rbb State Treaty) and preparing written reports to inform the Land parliaments about the economic and financial situation of rbb (cf. § 30(4) in conjunction with § 45 rbb State Treaty). Pursuant to § 30(5) of the rbb State Treaty, the Director-General is required to inform the competent supervisory body comprehensively and in due time about significant matters concerning rbb or its affiliates. Moreover, the Director-General is responsible for the entire operations of rbb, including the programming. Under § 30(1) second sentence of the rbb State Treaty, this responsibility is not affected by the rights of other bodies of rbb.

17

§ 33(1) of the rbb State Treaty provides that the Director-General and two directors form the Board of Directors of rbb. Meetings of the Board of Directors are attended, in an advisory capacity, by the heads of the Land programmes, the editor-in-chief and the legal adviser. Pursuant to § 32(1) first and second sentence of the rbb State Treaty, the Broadcasting Council elects a programming director and the Administrative Council elects an administrative director, both on the recommendation of the Director-General and for a maximum term of five years with the possibility of re-election. The responsibilities of the Board of Directors are set out in a list of tasks introduced by the words ‘in particular’ and supplemented by the phrase ‘in consideration of the overall responsibility of the Director-General’ (cf. § 33(2) first sentence rbb State Treaty). The responsibilities include matters of considerable importance, introduced by the phrase ‘such as’ (cf. § 33(2) first sentence no. 1(a) rbb State Treaty) and the resolution of differences of opinion affecting several divisions upon application of a director (cf. § 33(2) first sentence no. 2 rbb State Treaty). These matters of considerable importance include fundamental questions of strategy for programming, digital matters and human resources, the preparation of the budget, the annual financial statements and medium-term financial planning, the preparation of the annual report and the strategy and development plan, the acquisition, disposal and encumbrance of real estate, the acquisition and disposal of companies and investments, and the hiring, dismissal and restructuring of personnel.

18

[…]

19

g) The provisions of the State Treaty challenged by the complainant and other relevant provisions are as follows:

§ 2 Seat and regional structure

[…]

§ 4 Programming

[…]

§ 8 Transparency

[…]

§ 15 Bodies

[…]

§ 16 Duties, liability, further training and efficiency audit

[…]

§ 30 Tasks

[…]

§ 31 Duties and liability

[…]

§ 32 Directors

[…]

§ 33 Composition, tasks, duties and liability

[…]

II. 

20

With its constitutional complaint, the complainant asserts a violation of its freedom of broadcasting under Art. 5(1) second sentence of the Basic Law (Grundgesetz – GG).

21-28

[…]

III. 

29

The Berlin House of Representatives, the Brandenburg Landtag (i.e. the state parliaments of Berlin and Brandenburg) and the Land governments of Berlin and Brandenburg were heard on the constitutional complaint. They oppose the constitutional complaint.

30-42

[…]

B. 

43

The constitutional complaint is admissible for the most part. It is inadmissible insofar as the complainant challenges the provisions requiring the public advertisement of open positions (§ 8(3) rbb State Treaty) and the provisions on liability of the members of the Broadcasting Council and the Administrative Council (§ 16(3) and (4) rbb State Treaty) and of the Director-General (§ 31 rbb State Treaty).

I. 

44

The constitutional complaint is directed against the acts of approval of the Land Berlin and the Land Brandenburg of the rbb State Treaty in conjunction with various provisions of the State Treaty. As legislative acts, the acts of approval can be admissibly challenged in constitutional complaint proceedings (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 12, 205 <220>; 87, 181 <185>; 119, 181 <211>; established case-law). The implementation of state treaties in domestic law differs from the ordinary legislative process in that the legal contents are contained in the state treaty. Nevertheless, it is only the respective act of approval or a parliamentary decision of approval that make the legal contents of a state treaty binding at the domestic level (cf. BVerfGE 90, 60 <86 f.>; 119, 181 <211>). A constitutional complaint against the act of approval can challenge the legal contents that are to become binding with regard to interferences with the complainants’ legal sphere (cf. BVerfGE 123, 148 <170 f.>).

II. 

45

The Federal Constitutional Court has jurisdiction to review the provisions of the State Treaty regarding the structure and organisation of rbb. This is not altered by the fact that the subject matter of the complaint is tied to the provisions of Regulation (EU) 2024/1083 of the European Parliament and of the Council of 11 April 2024 establishing a common framework for media services in the internal market and amending Directive 2010/13/EU (European Media Freedom Act, OJ EU L of 17 April 2024).

46

1. The Federal Constitutional Court reviews domestic law and its application against the standard of the fundamental rights of the Basic Law even if the domestic law in question falls within the scope of application of EU law but is not fully determined by it (cf. BVerfGE 152, 152 <169 para. 42> − Right to be forgotten I; 155, 119 <163 f. para. 85, 165 para. 87> − Subscriber data II; 158, 1 <23 para. 36> − Ecotoxicity data; 162, 1 <69 f. para. 143> − Bavarian Protection of the Constitution Act; 169, 332 <356 para. 53> − Federal Criminal Police Office Act II). Whether a legal matter is fully determined by EU law generally depends on the provisions from which the legal consequences for the case at issue derive, i.e. whether the legal relationship at issue and the specific legal consequences following from it are determined by EU law or by domestic law. It is the provisions applicable to a specific case and their context that are relevant, not the general area of law in question (cf. BVerfGE 152, 216 <246 f. para. 78> − Right to be forgotten II; 158, 1 <26 para. 42>).

47

2. The area regulated by the challenged provisions of the State Treaty is not fully determined by EU law. It is true that their regulatory content, in terms of organisational structure, programme and liability, is linked to the safeguards for the independent functioning of public service media providers provided in Art. 5 of the European Media Freedom Act. As a public broadcaster, rbb is a public service media provider in this sense, which is entrusted with a public service remit under national law and receives national public funding for the fulfilment of such a remit (cf. Art. 2 no. 3 European Media Freedom Act). Under Art. 5(1) of the European Media Freedom Act, Member States are required to ensure that such public service media providers are editorially and functionally independent. Art. 5(2) of the European Media Freedom Act specifies the requirements to ensure independence for the appointment and dismissal of the head of management or members of the management board.

48

Yet insofar as it concerns the present case, this regulation only sets basic standards for the independent functioning of public service media providers across the EU, which must be free from governmental, political, economic or private interests, without prejudice to national constitutional law that is consistent with the Charter of Fundamental Rights of the European Union. The principles to be derived from these minimum standards should be set out at national level (cf. recital 31, first to third sentence European Media Freedom Act). This applies all the more to provisions specifying these principles.

49

Insofar as the requirement to publicly advertise open positions at issue here has a specific link to the requirement of a transparent appointment procedure under Art. 5(2) of the European Media Freedom Act, this EU law requirement does not mandate a greater degree of regulation. It is for the Member States to decide which means to use to ensure transparency. In this respect, they retain leeway. No uniform application of the law is mandated in this regard.

III. 

50

The complainant has substantiated its standing with regard to most of the challenged provisions. However, the complainant lacks standing insofar as it challenges the provisions requiring the public advertisement of open positions (§ 8(3) rbb State Treaty) and the provisions on liability of the members of the Broadcasting Council and the Administrative Council (§ 16(3) and (4) rbb State Treaty) and of the Director-General (§ 31 rbb State Treaty).

51

1. Pursuant to § 23(1) second sentence and § 92 of the Federal Constitutional Court Act (Bundesverfassunsgerichtsgesetz – BVerfGG), a constitutional complaint must demonstrate that complainants’ own fundamental rights or equivalent rights may have been violated by the challenged provisions (cf. BVerfGE 140, 42 <54 para. 47>; 159, 223 <270 para. 88> − Federal pandemic emergency brake I <Curfews and contact restrictions>; 162, 1 <51 para. 93>). […]

52

[…]

53

2. a) The complainant has demonstrated a possible violation of its freedom of broadcasting under Art. 5(1) second sentence of the Basic Law. The complainant, a public broadcaster, is holder of this fundamental right (cf. BVerfGE 31, 314 <321 f.>; 107, 299 <309 f.>; 119, 181 <211>; established case-law) because public broadcasters, as legal persons under public law, are directly part of the area of life protected by freedom of broadcasting, defend this fundamental right in an area independent from the state and have been established by the state as independent organisations precisely to allow for the realisation of freedom of broadcasting (cf. BVerfGE 31, 314 <322>; 59, 231 <254>). […]

54

b) Nevertheless, the complainant’s submissions that it is individually affected only satisfy the substantiation requirements with regard to certain claims.

55

aa) The challenges of 2(3), § 4(2) no. 1, § 4(4) first sentence and §§ 32 and 33 of the rbb State Treaty satisfy the substantiation requirements. […]

56

bb) However, the complainant has failed to sufficiently substantiate that it is affected insofar as it challenges the lack of exceptions to the requirement to publicly advertise open positions under § 8(3) of the rbb State Treaty.

57

[…]

58

cc) With regard to the challenged provisions governing liability of the members of the Broadcasting Council and Administrative Council pursuant to § 16(3) and (4) of the rbb State Treaty, and of the Director-General pursuant to § 31 of the rbb State Treaty, the complainant has also failed to demonstrate that it is adversely affected in a manner that satisfies the substantiation requirements. It is not decisive in this respect that the provisions of the State Treaty, when considered directly, are favourable to the complainant, because freedom of broadcasting may still be adversely affected – at least indirectly – and the complainant demonstrates this possibility (see (1) below). That said, the constitutional complaint does not sufficiently address the ordinary law that is relevant for the challenge that the complainant is indirectly affected (see (2) below).

59

(1) The burdens resulting from the provisions on liability initially only interfere with the legal sphere of the addressees of the provisions who are subject to liability. Only natural persons, based on their role and activities as administrators or members of a body of rbb, are subject to the provisions regarding duties of care and to liability claims under § 16(3) and (4) and § 31 of the rbb State Treaty. By contrast, the complainant is the beneficiary of the liability claims. That said, the complainant has sufficiently demonstrated that the consequences arising from the liability rules may also affect the fulfilment of its mandate.

60

Fundamental rights protection is not limited to direct interferences. State measures that have an indirect or de facto impact may be functionally equivalent, in terms of their objective and effects, to a direct interference with fundamental rights. Such measures must then be treated in the same way as a direct interference (cf. BVerfGE 161, 299 <345 para. 113> − Proof of vaccination <COVID‑19>; 162, 378 <409 f. paras. 72, 413 f. para. 80 f.> − Proof of vaccination <Measles>; 170, 293 <340 f. para. 107> − Statutory requirement of hospitalisation for coercive medical treatment). However, a measure can only be found to constitute interference if there is a sufficiently close link between the fundamental rights position of those affected and the challenged measure (cf. BVerfGE 108, 370 <384>). There is no such effect equivalent to an interference if the indirect effects of a provision are merely unintended side effects, and thus more or less coincidental (cf. BVerfGE 106, 275 <299>; 108, 370 <384>; 116, 202 <222>; 148, 40 <51 para. 28 f.>; 162, 378 <410 para. 72>; established case-law).

61

The complainant has demonstrated that it is individually affected in accordance with this distinction. […]

62

(2) However, the complainant has failed to substantively show that the rules on liability may in fact deter candidates from working for rbb. It has not sufficiently addressed the contents of the rules on liability.

63-65

[…]

66

c) The complainant has demonstrated that it is directly affected by the challenged provisions of the rbb State Treaty. Challenged legislation has direct effects if it takes effect without any intermediary implementation measure (cf. BVerfGE 119, 181 <212>; 125, 39 <76>). The provisions of the State Treaty that have become binding through the acts of approval do not require further implementation measures; they determine the legal position of the complainant on their own.

67

d) The complainant has also demonstrated that it is presently affected. Pursuant to its § 53(1), the rbb State Treaty entered into force on 1 January 2024, the first day of the month following the deposit of the instruments of ratification (cf. GVBl Berlin 2024 p. 11; GVBl Brandenburg I 2024 no. 1) and applies for an indefinite period pursuant to its § 52(1) first sentence.

IV. 

68

The requirement to exhaust all legal remedies (cf. § 90(2) first sentence of the Federal Constitutional Court Act) and the requirements following from the principle of subsidiarity do not preclude the admissibility of the constitutional complaint (cf. for a comprehensive overview BVerfGE 159, 223 <273 f. para. 101>; 161, 63 <86 f. para. 37> − Wind farm participatory companies; 169, 130 <155 f. para. 40 ff.> − Hessian Protection of the Constitution Act with further references). The constitutional complaint is admissible without requiring prior recourse to the ordinary courts.

69

Where the assessment of a provision raises only 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 carried out by the ordinary courts, there is no need for such prior decision (cf. for a comprehensive overview BVerfGE 162, 1 <54 f. Rn. 100 ff.>; 165, 1 <32 ff. Rn. 45 ff.>, each with further references; established case-law).

70

This is the case here. […]

V. 

71

The constitutional complaint, which was received on 28 November 2024, complies with the one-year time limit pursuant to § 93(3) of the Federal Constitutional Court Act.

72-75

[…]

C. 

76

Insofar as the acts of approval, and thereby the individual provisions of the State Treaty, have been admissibly challenged, the constitutional complaint is unfounded. The complainant’s freedom of broadcasting under Art. 5(1) second sentence of the Basic Law has not been violated.

I. 

77

The guarantees of the freedom of broadcasting enshrined in Art. 5(1) second sentence of the Basic Law are decisive for the constitutional assessment of the provisions of the rbb State Treaty.

78

1. Public broadcasters are holders of the fundamental right to freedom of broadcasting; they are established by the state to realise freedom of broadcasting as organisations independent from the state (cf. BVerfGE 31, 314 <322>; 59, 231 <254>). Freedom of broadcasting serves to comprehensively guarantee the free formation of individual and public opinion (cf. BVerfGE 12, 205 <260>; 136, 9 <28 para. 29>; 158, 389 <416 para. 76> − State Treaty on the Financing of Public Broadcasting; established case-law). The free formation of opinion, which is a precondition both for the development of one’s personality and for the democratic order as such, occurs through communication processes (cf. BVerfGE 158, 389 <417 para. 77> with further references). Broadcasting is a medium and a factor of this constitutionally protected process. (cf. BVerfGE 12, 205 <260>; 73, 118 <152>; 74, 297 <323 f.>; 83, 238 <296>). It is for the legislator, which has broad leeway in this regard, to give shape to the legal framework for public broadcasting (cf. BVerfGE 158, 389 <417 para. 76> with further references; see also Thuringian Constitutional Court, Judgment of 19 June 1998 - 10/96 ‑, para. 74: the state as guarantor of broadcasting). The legislator must ensure that the necessary preconditions exist (cf. BVerfGE 136, 9 <34 para. 39> with further references).

79

2. If the legislator fails to satisfy the constitutional requirements on designing the legal framework for public broadcasting and thereby adversely affects the realisation of the guarantees of the freedom of broadcasting, in particular by endangering the ability of public broadcasters to fulfil their mandate with regard to broadcasting coverage, this violates the freedom of broadcasting of public broadcasters following from Art. 5(1) second sentence of the Basic Law. Public broadcasters, which are holders of the fundamental right, can challenge such risks as violations of their freedom of broadcasting.

80

The design of the broadcasting system and of public broadcasters must be guided by the objective of ensuring the free formation of individual and public opinion (cf. BVerfGE 121, 30 <59> with further references). The legislator must satisfy the requirements that arise from the need to ensure the proper functioning of public broadcasting (see a) below), editorial autonomy (see b) below) and the required distance from the state that follows from the need to ensure diversity (see c) below).

81

a) The proper functioning of public broadcasting (cf. BVerfGE 119, 181 <214>) may not be endangered, especially when it comes to the organisation of the internal structure of public broadcasters as part of the public broadcasting system created by the legislator (cf. Bavarian Constitutional Court, Decision of 25 May 2007 - Vf. 15‑VII‑04 ‑, para. 58).

82

However, constitutional law does not prescribe specific structural principles governing the manner in which representative and executive functions must be organised for public broadcasters, for example in the sense of a monocratic or collegial structure or a hybrid form combining both elements. Under constitutional law, the legislator is in principle free to decide how to design the structural model, provided that it does not endanger the proper functioning of public broadcasting ([…]).

83

That said, in order to ensure effective scrutiny, the pluralist organisation of public broadcasters requires internal rules that allow for a clear allocation of responsibility within the chosen structure ([…]). In this regard, the general principle of specificity, which follows from the principle of the rule of law enshrined in Art. 20(3) of the Basic Law, must be satisfied. The requirement of specificity is satisfied if problems of interpretation raised in the context of the provision at issue can be overcome by applying established legal methodology (cf. BVerfGE 134, 141 <184 f. para. 127>; 149, 293 <324 para. 78>; established case-law).

84

Moreover, the organisational structure, which must always pursue the substantive aim of freedom of broadcasting, may not be used to influence the journalistic activities of public broadcasters. The legislator is not entitled to covertly sanction the conduct or management of staff through organisational changes; in particular, it may not remove individuals it dislikes from office (cf. Federal Constitutional Court, Order of the Third Chamber of the First Senate of 7 November 1995 - 1 BvR 209/93 ‑, para. 20).

85

b) While it falls to the legislator to give specific shape to the mandate of public broadcasters to ensure diversity under Art. 5(1) second sentence of the Basic Law and to take the necessary media-policy and programming decisions, including through guidelines and programming principles (cf. BVerfGE 119, 181 <214, 221>; 158, 389 <421 para. 84>), freedom of broadcasting at its core guarantees that public broadcasters have editorial autonomy. This means that public broadcasters can freely decide how to fulfil their journalistic tasks, without external influence (cf. BVerfGE 87, 181 <201>; 90, 60 <87>; 97, 298 <310>; 114, 371 <389 f.>). In doing so, public broadcasters must further content diversity (cf. BVerfGE 158, 389 <418 ff. para 79 ff.>).

86

Editorial freedom primarily concerns the content and format of broadcasts, since it is for public broadcasters to determine, on the basis of recognised standards, what is required by the mandate of public broadcasting in journalistic terms. In deciding on the necessary content and format, public broadcasters also decide on the time required for the realisation of such contents, and thus on the scope of the programme (cf. BVerfGE 87, 181 <201>; 90, 60 <91 f.>; 119, 181 <218 f.>; 158, 389 <421 para. 84>; established case-law).

87

With the selection, contents and design of the programmes protected from external influence, the editorial freedom of public broadcasters also comprises decision-making regarding the selection, employment and use of staff, which determines the design of the programmes (cf. BVerfGE 59, 231 <259 f.>). Not only can editorial freedom be impaired directly, it can also be impaired indirectly through the selection of the staff (cf. BVerfGE 73, 118 <183>).

88

c) The organisation of public broadcasters must be such that all relevant societal stakeholders are represented and that freedom of reporting is not affected (cf. BVerfGE 12, 205 <262>). This requirement of diversity gives rise to a requirement of distance from the state (cf. BVerfGE 12, 205 <261 ff.>; 57, 295 <320>; 83, 238 <296>; 136, 9 <28 para. 28, 33 para. 38>). It does not diminish the state’s responsibility as guarantor, but merely determines how this responsibility must be exercised. The state must not have a controlling influence on the programme (cf. BVerfGE 83, 238 <330>). The question of how to structure the executive level of public broadcasters must be dealt with separately from the process of the formation of the will of the state and its representatives (cf. BVerfGE 136, 9 <35 para. 40 f.>). This is because public broadcasting is a matter for the public; it must be fully independent, impervious to outside influence and above party politics (cf. BVerfGE 31, 314 <327>).

II. 

89

The admissibly challenged provisions regarding the Board of Directors (see 1. below), the establishment of regional broadcast studios and regional offices (see 2. below), the creation of heads of Land programmes (see 3. below) and the minimum duration for separate programmes in each Land (see 4. below) apply these standards; they do not violate the complainant’s freedom of broadcasting under Art. 5(1) second sentence of the Basic Law.

90

1. The provisions regarding the establishment of a Board of Directors at rbb, within the meaning of § 15 no. 4 of the rbb State Treaty and with the tasks and powers set out in §§ 32 and 33 of the rbb State Treaty, do not violate the complainant’s freedom of broadcasting. The legislator shapes the executive structure at rbb by introducing a balance of competences, which does not endanger the proper functioning of rbb or the performance of its tasks. This applies both for the competences as such (see a) below) and for their delimitation (see b) below). The executive decision-making procedures, even considering the number of directors and the potential for gridlock in decision-making, do not reach the level of a risk that violates the freedom of broadcasting (see c) below). Finally, the requirement of distance from the state following from the need to ensure diversity is not affected by the executive structures at issue (see d) below).

91

a) The division of competences among the bodies responsible for managing rbb allows for mutual scrutiny that ensures that its tasks can be performed.

92

In order to achieve a greater division of competences, the Land legislators introduced a balance of competences by combining elements of an executive structure controlled by a Director-General and a structure involving a collegial body in the form of a Board of Directors which includes the Director-General. They refer to this form of organisation as a transitional step to a board-of-directors structure, or as a modified director-general structure (cf. LTDrucks Berlin 19/1311, pp. 53, 85; LTDrucks Brandenburg 7/8689, reasoning pp. 2, 30). Some decisions are made solely by the Director-General, some are made in liaison with the two directors, and some are made independently by the directors in their respective areas of responsibility. The competences for these different decision-making processes – which are in part divided and in part interconnected – are intended to be allocated while respecting the overall responsibility of the Director-General (cf. § 30(1) second sentence in conjunction with the introductory sentence of § 33(2) first sentence rbb State Treaty), resulting in a back-up competence for the Director-General (cf. § 30(1) second and third sentence rbb State Treaty). The responsibilities of the Board of Directors that are not subject to this back-up competence concern a specific list of matters of considerable importance and the resolution of differences of opinion affecting several divisions (cf. § 33(2) first sentence nos. 1 and 2 rbb State Treaty). By contrast, the tasks performed independently by the directors only concern their own areas of responsibility (cf. § 32(2) rbb State Treaty).

93

The balance of competences created by joint tasks combined with the division of tasks in other areas allows for mutual scrutiny in the exercise of the competences. According to the legislative intent, one aim of the provisions is to reduce the risk of potential breaches of compliance by preventing uncoordinated initiatives of the Director-General (cf. LTDrucks Berlin 19/1311, p. 86 f.; LTDrucks Brandenburg 7/8689, reasoning p. 31). The assessment that this aim can generally be achieved through an interconnection and division of competences among the executive bodies is not objectionable. Due to its pressure to reach consensus, the collegial principle provided for some of the tasks generally not only fosters collegial liaison, collaboration and cooperative behaviour to bring about decisions supported by the entire executive level, but also ensures mutual scrutiny. Actions do not remain opaque in the run-up to a decision and can therefore be scrutinised. Such scrutiny is a suitable aspect of the internal organisation of the management of a public broadcaster and furthers the effective performance of executive tasks.

94

b) The delineation of competences of the Board of Directors in relation to the overall responsibility of the Director-General (see aa) below) and the provisions regarding the decision-making processes of the Board of Directors (see bb) below) do not endanger the proper functioning of rbb and constitute a sufficiently effective and clear division of competences.

95

aa) Despite the reservation of the overall responsibility of the Director-General as a body acting on its own in this regard (cf. § 30(1) second sentence in conjunction with the introductory sentence of § 33(2) first sentence rbb State Treaty), the tasks of the Board of Directors are specifically listed and thus separated from the exclusive decision-making authority of the Director-General. The same applies to the tasks in the administrative and programming divisions independently overseen by the directors (cf. § 32(2) rbb State Treaty).

96

All executive bodies are allocated their own substantial area of responsibility to perform executive tasks. A catalogue lists specific competences of the Board of Directors (cf. § 33(2) first sentence rbb State Treaty). This catalogue is not exhaustive, since the list of matters of considerable importance (cf. § 33(2) first sentence no. 1 rbb State Treaty) and the resolution of differences of opinion affecting several divisions (cf. § 33(2) first sentence no. 2 rbb State Treaty) is preceded by the phrase ‘in particular’. Moreover, the list of matters of considerable importance (cf. § 33(2) first sentence no. 1(a) through (f) rbb State Treaty) is not complete, as indicated by the phrase ‘such as’. Yet the listed tasks serve as examples for tasks that are not expressly set out. Such tasks that have not been set out must also concern matters of considerable importance or differences of opinion affecting several divisions. The ordinary law interpretation indicated by this catalogue of rules makes it possible to delimit the competences through interpretation in a way that ensures the proper functioning of rbb and is sufficiently specific and clear; this does not endanger the proper functioning of the executive bodies.

97

The obligation for all executive bodies to respect the competences of the other bodies (cf. § 30(1) first sentence, § 32(2), § 33(1) first sentence rbb State Treaty) does not alter the fact that the delimitation of tasks satisfies the specificity requirements. The requirement to respect the competences of the other bodies, which precedes all of the provisions on competences, does not alter the delimitation of competences and therefore does not water down executive responsibilities, as claimed by the complainant.

98

Nor does the overall responsibility of the Director-General, which must always be observed, lead to an unclear allocation of competences that would endanger the proper functioning of rbb. The Director-General’s right to object to decisions of the Board of Directors pursuant to § 33(2) second sentence of the rbb State Treaty, which is the only aspect under review here (cf. para. 53), serves to prevent decisions that the Director-General considers to be untenable in view of his or her overall responsibility.

99

bb) The rules for decision-making of the Board of Directors within the framework of its competences are also governed by a sufficiently specific framework. They do not endanger the proper functioning of rbb.

100

It is true that the rbb State Treaty does not contain an express provision regarding this essential organisational matter. However, an overall assessment of the provisions of the State Treaty clearly shows that the majority principle applies for decisions of the Board of Directors, which is made up of three persons. It can be derived from the Director-General’s right to object (cf. § 33(2) second sentence rbb State Treaty) and the composition of the Board of Directors, which is comprised of three persons with voting rights, that decisions do not have to be unanimous and that the necessary majorities are not merely governed by the Rules of Procedure (cf. § 33(1) second sentence rbb State Treaty). This is because a right to object would not be necessary unless two members of the Board of Directors could outvote the third member. In addition, the explanatory memoranda also assume that the majority principle applies (cf. LTDrucks Berlin 19/1311, p. 86 f.; LTDrucks Brandenburg 7/8689, reasoning p. 31).

101

c) The fact that the competence for executive tasks is allocated to several bodies and that a Director-General acting on his or her own is part of a body with collegial decision-making structures could affect the freedom of broadcasting in terms of the proper functioning of public broadcasters. However, it does not endanger the proper functioning of the executive in performing its tasks.

102

In principle, the legislator is not precluded from creating a Board of Directors as a collegial structure rather than assigning the executive tasks of a public broadcaster exclusively to one person under the so-called director-general structure (cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 15 January 1999 - 1 BvR 1946/98 ‑, para. 39 f.). rbb objects to the fact that the position of the Director-General acting on his or her own is weakened through a diminishment of competences, yet this does not necessarily affect the proper functioning of rbb, but initially only results in different decision-making structures. The interconnected competences of the Director-General and the Board of Directors serve to foster collegial liaison, collaboration and cooperative behaviour to bring about executive decisions supported by the entire executive level. This creates pressure to reach consensus among those involved. The legislator is in principle free to establish cooperative decision-making processes that open up the possibility of reconciling conflicting views and exercising mutual scrutiny.

103

Nor does the specific design of the competences and procedures endanger the proper functioning of rbb. This applies both with regard to overcoming gridlock in decision-making (see aa) below) and with regard to the specific areas of responsibility of the directors (see bb) below).

104

aa) Any interconnection and division of competences provided for by the legislator may not endanger the proper functioning of rbb on account of the possibility of sustained gridlock arising from the fact that decisions can only be taken in collegial liaison. By contrast, gridlock that is merely theoretically conceivable does not diminish the legislator’s leeway (cf. regarding higher education law BVerfGE 111, 333 <364 f.>). The organisational structure must therefore generally allow for possibilities to resolve gridlock in decision-making. The challenged provisions satisfy these requirements.

105

The complainant rightly points out that situations of gridlock may arise that result in failure to take executive decisions. By way of his or her right to object to decisions of the Board of Directors, the Director-General has a veto right which, if exercised, results in the relevant decision of the Board of Directors not being adopted (cf. § 33(2) second sentence rbb State Treaty). According to the legislative conception, this right follows from the overall responsibility of the Director-General (cf. LTDrucks Berlin 19/1311, p. 86 f.; LTDrucks Brandenburg 7/8689, reasoning p. 31), as it ensures that executive decisions that are untenable in the Director-General’s view are not adopted. However, if agreement is not reached following the exercise of the right to object, no action can be taken regarding the affected task, even if the mandate of rbb requires executive action. Neither the Director-General nor a majority on the Board of Directors can resolve gridlock on their own authority. This may lead to stalemate and the mutual obstruction of decisions.

106

Yet the structure provided for by the Land legislators provides a framework to resolve substantive conflicts – albeit not at the level of the specific decision, but at the level of those responsible through decision-making on the composition of the executive bodies –, which maintains the proper functioning of rbb by making it possible to bring about executive decisions. With the approval of the competent supervisory body, the Director-General can remove the directors (cf. § 32(1) third sentence, § 21(3) no 2, § 25(3) no. 5 rbb State Treaty), and thus indirectly resolve the conflict through a personnel decision. Alternatively, the Broadcasting Council can examine whether there are important grounds to remove the Director-General and, where necessary, initiate a removal procedure (cf. § 29(4) rbb State Treaty). Not only do these fundamental decisions serve to resolve basic conflicts, they also increase the pressure to reach compromise before gridlock occurs, given the significance of the consequence of removal. In this context, the internal duties that the members of rbb’s bodies have towards rbb mitigate the potential for conflict. They are required to respect the competences of the other bodies (cf. § 30(1) first sentence, § 32(2), § 33(1) first sentence rbb State Treaty). Moreover, all members of the Board of Directors have duties of care that are subject to liability (cf. § 31(1) and (2), § 33(4) rbb State Treaty), which also apply in the context of conflicts between the different bodies. This is sufficient to counteract sustained gridlock. The proper functioning of rbb is not endangered in a manner that would be incompatible with Art. 5(1) second sentence of the Basic Law.

107

bb) Limiting the number of directors to two members of the Board of Directors entitled to vote and their appointment for the divisions of programming and administration, respectively (cf. § 32(1) first sentence rbb State Treaty) do not endanger the proper functioning of the executive of rbb.

108

The complaint by rbb in this regard is that it has lost flexibility since it cannot appoint a third member to the Board of Directors for media and information technology, although this area is significant based on the investments made and the number of staff members. This does not constitute a violation of constitutional law.

109

A decision by the legislator to lay down not only the structure of the executive, but also the responsibilities of the individual members of the executive does not exceed its leeway. In the present case, the division into an administrative and a programme division is in line with the tasks of the bodies in charge of internal scrutiny, and is therefore rather conducive to the proper functioning of rbb; in any event, it does not endanger its proper functioning. It also allows rbb a certain latitude within the established framework. The explanatory memoranda to the draft acts emphasise this aspect, particularly in light of the changing media landscape (cf. LTDrucks Berlin 19/1311, p. 86; LTDrucks Brandenburg 7/8689, reasoning p. 31). If the challenges posed by media technology can no longer be sufficiently addressed by the directors themselves, a necessary specialisation can be realised at a lower management level that supports the executive level.

110

In addition, the restriction to two divisions also impacts the size of the Board of Directors, whose members are the Director-General and the directors responsible for their respective division (cf. § 33(1) first sentence rbb State Treaty). The decision on the number of members contains an assessment of how many persons are necessary for effective management. The legislator has leeway in this regard.

111

d) Contrary to rbb’s submissions, the need to ensure diversity is not affected by the establishment of the Board of Directors as an additional executive body. The Board of Directors is solely part of the executive management and does not perform supervisory functions. The requirement of distance from the state is likewise not affected by provisions on the Board of Directors in distinction from the Director-General. The composition of the Broadcasting Council and the Administrative Council is not set out in these provisions.

112

2. Requiring a minimum number of two regional broadcast studios and three regional offices while determining their locations in § 2(3) of the rbb State Treaty does not raise constitutional concerns with regard to the realisation of the guarantees of the freedom of broadcasting. The determination of the locations does not endanger rbb’s mandate; rather, it is conducive to fulfilling its mandate (see a) below). rbb’s stated interest in sufficient financing does not refute this assumption (see b) below).

113

a) The determination of a minimum number of regional broadcast studios and regional offices and of their location does not endanger freedom of broadcasting, but fosters a diverse programme and is thus conducive to rbb’s mandate.

114

The mandate of public broadcasters which, in the existing legal framework for the media, follows from Art. 5(1) second sentence of the Basic Law (cf. BVerfGE 73, 118 <157 f.>; 83, 238 <297 ff.>; 90, 60 <93 f.>) includes the provision of broad-based information that safeguards the diversity of opinions as required by constitutional law (cf. BVerfGE 74, 297 <325>). Regional programming is in line with this mandate, because it can be assumed that, at least for public broadcasters that serve a big Land or – as in the present case – more than one Land, it does justice to the regional differences and the special need to provide relevant information and content that subscribers identify with (cf. BVerfGE 87, 181 <204>). The protection of media pluralism at regional level and local level is also an objective of general interest expressly recognised in Art. 11(2) of the Charter of Fundamental Rights of the European Union (cf. CJEU, Judgment of 3 February 2021, Fussl Modestraße Mayr, C‑555/19, ECLI:EU:C:2021:89, para. 90).

115

The Land legislators specify rbb’s mandate, which directly follows from the Constitution, for the organisation of broadcasting in § 3(2) first sentence of the rbb State Treaty, in a form that is not objectionable: with its overall programme, rbb must offer an objective and comprehensive overview of Land and regional affairs concerning all important social, economic and cultural matters. Under § 3(2) second sentence of the rbb State Treaty, the programmes provided by rbb must also give effect to the regional diversity of the Länder Berlin and Brandenburg and include the language and culture of the Sorbian/Wendian[/Lusatian] people [– a protected West Slavic minority ethnic group].

116

The determination of a minimum number of locations of the two types at issue (regional broadcast studios and regional offices) serves to ensure that rbb is present across the entire territory covered by it. The State Treaty plausibly accords them the function of ensuring regional diversity. Under § 2(3) second sentence of the rbb State Treaty, the programmes provided by regional broadcast studios and regional offices reflect the realities of the regions and make a relevant contribution to rbb’s overall programme. They are thus directly linked to broadcasts with a regional focus (cf. LTDrucks Berlin 19/1311, p. 55; LTDrucks Brandenburg 7/8689, reasoning p. 4) and structurally ensure diversity without giving specific programming instructions to rbb or making the realisation of other diversity aspects more difficult.

117

The provision on locations also does justice to rbb’s role as a broadcaster serving more than one Land. rbb is a joint broadcaster for two Länder (cf. Preamble first sentence rbb State Treaty). The distribution of locations ensures that the Land Brandenburg is appropriately represented in line with its territory. The determination of locations is therefore significant for the objective of providing equal services in Berlin and Brandenburg, pursued by both Länder, in consideration of regional programming needs (cf. LTDrucks Berlin 19/1311, p. 55; LTDrucks Brandenburg 7/8689, reasoning p. 4); this is compatible with the Constitution.

118

Insofar as the complainant asserts that the selection of locations is unreasonably influenced by economic interests, additional considerations regarding locations do not endanger the freedom of broadcasting. Such considerations do not diminish the relevant guarantees in light of the legislative contexts set out above.

119

b) The fact that rbb has an interest in having sufficient financial and human resources to fulfil its mandate does not mean that its mandate is endangered.

120

rbb claims that the determination of a minimum number of regional broadcast studios and regional offices to be operated in specific locations ties up resources that are needed elsewhere. This challenge of a shortage of available resources is in substance a challenge regarding the financing of public broadcasting, which the legislator must determine separately from general broadcasting legislation (cf. BVerfGE 158, 389 <422 para. 86 ff.>). Given this constitutionally required separation, the challenge regarding inadequate financing does not, from the outset, constitute a relevant constitutional challenge regarding the substantive legislative decision on locations for public broadcasters. Insofar as the specification in ordinary law challenged here contains a legislative decision regarding the operation of certain organisational units throughout the territory, the funding needs arising from this form part of the right of public broadcasters to receive funding. The legislator is required to ensure that the type and amount of the resources available to public broadcasters match their respective tasks (cf. BVerfGE 78, 101 <103 f.>; 87, 181 <198>; 90, 60 <90, 99>; 119, 181 <218>; 158, 389 <421 para. 83>). The scope of the state’s duty to provide funding is set forth in constitutional law and is further specified by the broadcasting legislation in the Länder (cf. BVerfGE 87, 181 <200>). The state’s duty to provide funding corresponds with the public broadcasters’ constitutional right to receive funding derived from Art. 5(1) second sentence of the Basic Law (cf. BVerfGE 158, 389 <421 para. 83>).

121

3. § 4(4) third and fourth sentence of the rbb State Treaty, which provides for an additional management level for the Land TV programmes in Berlin and Brandenburg, also does not violate the freedom of broadcasting of rbb.

122

a) The creation of an additional management level for Land programmes as such does not endanger the proper functioning of rbb’s executive. In providing for this internal organisation of rbb, the Land legislators give effect to the importance of Land programmes for rbb’s mandate, emphasised by § 4(4) second sentence in conjunction with § 3(2) first sentence of the rbb State Treaty, especially with regard to Land and regional affairs. It is not evident that this would make management appreciably more difficult and thereby endanger the proper functioning of rbb.

123

It is also not ascertainable that the establishment of an additional management level for both Land programmes would lead to the state exerting influence on the staff creating and shaping the programme by setting requirements for journalistic activities. Pursuant to § 4(4) third sentence of the rbb State Treaty, the decision on who to appoint to the management for the Land programmes is based on a proposal by the Director-General and is taken by the Broadcasting Council. The provision only sets out that this management level is to be created, without setting further substantive requirements. No indication for indirect state influence can be derived from the fact that this management level reports to the Programme Director.

124

b) The complainant also points to risks relating to labour law which, in the complainant’s view, may arise from the election of managers for the Land programmes for five years pursuant to § 4(4) third sentence of the rbb State Treaty. This likewise does not raise constitutional concerns regarding rbb’s mandate. Any fixed-term employment contracts necessary to implement this provision can be based on the objective ground of the characteristics of the work to be performed (§ 14(1) first sentence no. 4 Act on Part-Time Work and Fixed-Term Contracts, Teilzeit- und Befristungsgesetz – TzBfG).

125

This particular ground makes special reference to the rights of public broadcasters derived from the freedom of broadcasting and the related case-law (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 14/4374, p. 19). Based thereon, the interpretation and application of labour law by the ordinary courts must satisfy the requirements following from Art. 5(1) of the Basic Law (cf. BVerfGE 59, 231 <267 f.>).

126

For employment relationships shaped by constitutional law and the fundamental rights guarantees following from, amongst others, Art. 5(1) second sentence of the Basic Law, the ordinary courts are responsible for conducting the necessary weighing (cf. Decisions of the Federal Labour Court, Entscheidungen des Bundesarbeitsgerichts – BAGE 155, 101 <105 para. 18>; 161, 283 <288 para. 15>; cf. also Federal Labour Court, Judgment of 17 June 2020 - 7 AZR 398/18 ‑, paras. 38, 42; Judgment of 7 February 2024 - 7 AZR 367/22 ‑, para. 31). According to this case-law, fixed-term contracts are not ruled out, including for the management of the Land programmes. This is because persons with management tasks influence programming – in this case the Land programmes – to a significant extent. They are therefore part of the group of staff members who directly shape the contents of radio and TV programmes (cf. BVerfGE 59, 231 <260 f.>). The appointment to these management roles is therefore part of the editorial freedom of public broadcasters.

127

4. The provision requiring at least 60 minutes of daily separate TV programmes in the two Länder that must contain separate presentations of each of the two Länder pursuant to § 4(2) no. 1 of the rbb State Treaty does not violate the freedom of broadcasting of rbb.

128

The editorial freedom of public broadcasters does include decisions on the time required and the scope of the necessary programmes (cf. BVerfGE 87, 181 <201>; 90, 60 <91 f.>; 119, 181 <218 f.>; 158, 389 <421 para. 84>). § 4(2) no. 1 of the rbb State Treaty requires rbb to provide for a specific minimum duration of regional broadcasting regardless of the importance of the affairs and contents on a given day. The journalistic assessment of how long a regional programme should be based on its contents is thus replaced by the minimum duration required by the Land legislators.

129

Nevertheless, the specific minimum duration of separate programmes required by the State Treaty is compatible with editorial freedom, which forms the core of freedom of broadcasting. It corresponds to the federalist nature of a public broadcaster serving more than one Land, is strictly limited in time and leaves broad scope for autonomous development.

130

The aim pursued by the minimum duration of separate Land programmes – strengthening rbb’s regional ties (cf. LTDrucks Berlin 19/1311, p. 58; LTDrucks Brandenburg 7/8689, reasoning p. 6) – is supplemented by the provisions on regional structures of rbb (cf. § 2(3) rbb State Treaty), by the programming principles regarding regional diversity (cf. § 3(2) rbb State Treaty) and by the requirement of providing equal services (cf. § 4(5) rbb State Treaty). The overall purpose of regional representation pursued by various legislative measures directly follows from the federal and cooperative responsibility jointly assumed by the Länder Berlin and Brandenburg through the establishment of rbb by State Treaty; it is expressed in the statement that the regional ties form the core of rbb (cf. Preamble subpara. 2 first sentence rbb State Treaty). Federal cooperation is mirrored by the representation of the particularities of each Land and regional basis in the broadcasting programme.

131

Moreover, in fulfilling the mandate of public broadcasting, an essential aspect of balanced diversity (cf. in this regard BVerfGE 57, 295 <322 ff.>; 74, 297 <327>; 83, 238 <324>; 114, 371 <387>) is the regionality of a public broadcaster serving more than one Land (cf. BVerfGE 87, 181 <204>). A minimum time slot allows subscribers to identify with Land specific topics. In the present case, this time slot is rather limited in relation to the overall programming.

132

Conversely, the requirement of a minimum duration for separate daily programmes leaves rbb the possibility of exercising its substantive editorial freedom in shaping the Land programmes. The minimum time slot is not tied to specific contents of Land TV programmes. The journalistic freedom as to content remains intact. The minimum time required for separate programming leaves rbb broad scope to determine the timing of the programme. § 4(2) no. 1 of the rbb State Treaty does not contain any requirements on when to schedule the Land programmes or whether they should be scheduled as a block or split across several time slots. It is therefore for rbb to determine the detailed placement in the overall programme and to decide whether to extend the time slots for separate Land TV programmes beyond the minimum duration, either regularly on each day or certain days, or due to current events. State influence is limited to ensuring minimum visibility of the regional ties, which is one of the foundations of the system of federal and cooperative sharing of responsibility and is therefore a legitimate legislative objective.