Bundesverfassungsgericht

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Applications for Judicial Review Filed Against the ZDF State Treaty Successful for the Most Part

Press Release No. 26/2014 of 25 March 2014

Judgment of 25 March 2014
1 BvF 1/11

Upon the applications of the governments of the federal states of Rhineland-Palatinate and Hamburg, the First Senate of the Federal Constitutional Court decided, in a judgment delivered today, that the fundamental freedom of broadcasting (Art. 5 sec. 1 sentence 2 of the Basic Law, Grundgesetz - GG) demands that the institutional set-up of the public broadcasting corporations is guided throughout by the principle of ensuring diversity, and that the share of members who are part of state authority or close to it is strictly limited.

The ZDF State Treaty meets this standard only in part. Contrary to the current legal situation, the share of persons in the Television Council and in the Administrative Council who are part of state authority or close to it must be restricted to one third. Representatives of the executive may not have a controlling influence on the selection of the members who are detached from state authority; incompatibility regulations must be created which ensure that on the personal level, these persons are independent from the state. Personal independence in the exercise of their functions must be safeguarded by ensuring that the members of the bodies are not bound by instructions, and that they can only be dismissed for important reasons. Moreover, a minimum of transparency must be created with regard to the work of the supervisory bodies. The Laender (federal states) are obliged to enact new, constitutional legislation until 30 June 2015 at the latest.

Facts of the Case and Course of the Proceedings:

The broadcasting corporation ZDF (Zweites Deutsches Fernsehen) is based on the Inter-state Agreement on the Establishment of the Public Corporation Zweites Deutsches Fernsehen (ZDF-Staatsvertrag, ZDF State Treaty, ZDF-StV), which entered into force by Acts of assent of the Laender. Apart from the Intendant (Director General), who, as the central organ, manages the business of the corporation and has the ultimate responsibility for the programme, the ZDF-State Treaty establishes two internal supervisory bodies, the Television Council and the Administrative Council. With their application for abstract judicial review proceedings, the governments of Rhineland-Palatinate and of the Free and Hanseatic City of Hamburg challenge what they regard as excessive state influence in the Television Council and the Administrative Council.

Essential Considerations of the Senate:

The applications are admissible and for the most part well-founded.

1. a) The mandate, contained in Art. 5 sec. 1 sentence 2 GG, to guarantee broadcasting freedom is aimed at establishing a system which ensures that the diversity of existing opinions is presented in broadcasting as broadly and comprehensively as possible. It is for the legislature to create the set-up of this system, and the legislature has a broad margin of appreciation for this.

b) Under constitutional law, the requirements placed on the institutional set-up of the broadcasting corporations must follow the aim of ensuring diversity. There is a close interaction between these requirements and the legislature's fundamental decision in favour of a dual public and private broadcasting system. In this system, public broadcasting corporations must contribute to the diversity of content, which cannot be provided via the free market alone. The mandate of public broadcasting is not restricted to providing a minimum supply, or to filling gaps and niches that are not covered by private providers. Instead, it covers the breadth of the classical mandate of broadcasting in its entirety.

c) The composition of the collegiate bodies must be aimed at including persons with as wide a variety of perspectives and horizons of experience as possible, from all areas of the community. Here, the legislature must see to it in particular that not primarily official perspectives and other perspectives that are decisive for the formation of opinions in state and politics are presented. Apart from major associations which determine public life, smaller groupings which do not per se have access to the media, and perspectives which are not organised in a coherent structure, must, in an alternating manner, be presented as well. The fact that members are nominated according to their affiliation to specific groups in society does not mean that they are appointed as representatives of their respective specific interests. Instead, the supervisory bodies are advocates of the interest of the general public. Ensuring diversity does not mean shielding a social sphere of its own that is juxtaposed to the state. Therefore the legislature is not prevented from granting a share to representatives of the state. In view of the overarching aim of ensuring diversity, it must be seen to it that also the representatives of the state represent as diverse perspectives as possible.

d) At the same time, the organisation of public broadcasting must adhere to the principle of Staatsferne ("detachment from the state", or independence from state intervention), which is given concrete shape by the principle of ensuring diversity. Accordingly, the state has to organise public broadcasting and fulfil the ensuing mandate through its own broadcasting corporations; the state must, however, see to it that the set-up of the programme and its specific content do not become part of the state's general exercise of its functions. The bodies of the public broadcasting corporations must therefore be shaped in a way which effectively prevents that reporting is influenced by actors from the political sphere or actors close to state authority in order to enforce their own interests or specific, in particular party-political, agendas. The composition of the bodies must already effectively prevent the possibility of such an instrumentalisation.

2. In this context, the following restrictive provisos ensue from constitutional law:

a) The share of members who are part of state authority or close to it may not exceed a third of the statutory members of the respective body. Only if the supervisory bodies reflect a broad diversity of social dynamics and if a controlling influence of members who are part of state authority or close to it is effectively ruled out, does their set-up meet the requirements of ensuring diversity and satisfies the principle of independence from state intervention. Here, the influence of communication structures which are established by the state and structured along party lines must be taken into account; currently, this influence becomes apparent in the so-called "circles of friends". In order to ensure that the members of the supervisory bodies who are part of state authority or close to it cannot de facto gain excessive influence via such informal bodies, whose work cannot be effectively regulated, their share must be strictly limited. A controlling influence is sufficiently ruled out only if for each member who is part of state authority or close to it there are at least two members who are detached from state authority, i.e. if their share does not exceed a third of the statutory members of the respective body. If these bodies split up into committees to prepare their work, the same must apply to their composition.

b) The function which a member exercises determines who is deemed part of state authority or close to it. The decisive criterion is whether the person has the power to decide in the state or in politics, or competes for a public office or mandate that entails such power and particularly depends on the agreement of a broader public in this respect. Apart from members of governments, parliamentarians, and political appointees, this categorisation includes elected officials in leadership functions and members of political parties with enhanced responsibility. In contrast, persons who are delegated to the supervisory bodies from universities, from the judiciary or from organs of functional self-government, such as for instance the chambers of industry and commerce, are not deemed part of state authority or close to it.

c) On the one hand, the requirements connected with ensuring diversity apply to the selection of the members who are part of state authority or close to it. This means in particular that the different political currents and other differences in perspective, which are for instance due to the federal structure of Germany or are of a functional nature, are represented in as great a diversity as possible. Apart from this, the mandate of gender equality under Art. 3 sec. 2 sentence 2 GG must be complied with. All in all, the legislature has a broad margin of appreciation. The Federal Constitutional Court merely reviews whether the set-up is guided by the standard of ensuring diversity and if it, under a realistic perspective, leads to a justifiable result.

d) On the other hand, the regulations concerning the selection and appointment of the members who are detached from state authority must also be guided by the aim of ensuring diversity. In order not to thwart the principle of independence from state intervention, government members and other high-ranking representatives of the executive may not have a controlling influence in this respect. Insofar as specific groups in society are entrusted with the selection of members, their proposal may be rejected at most in exceptional cases, if there are special legal reasons for this.

The legislature must counteract a dominance of majority perspectives and a petrification of the composition of the broadcasting bodies. Here it has a broad array of possibilities to regulate, which are not outlined in detail under constitutional law. In view of the practical necessity of keeping the number of seats in the bodies limited, there is a danger that the right to appoint a member will usually be granted to the largest and best established association in a certain area. This entails the structural risk that in the respective areas, only the conventional majority perspectives of the associations which can best assert their interests will be considered, and that smaller associations with other perspectives will hardly have an opportunity. Moreover, if the groups entitled to appoint members are determined, and set out, by law, there is a threat that the composition of the bodies will become petrified. The legislature must effectively counteract that.

e) Persons who are members of governments, parliamentarians, political appointees, or elected officials in leadership functions may not be appointed as members who are detached from state authority. Persons who bear responsibility for a political party in a leading position must, however, also fall under the incompatibility regulations. They are inevitably involved in the decision-making in the state and in politics, and they are part of the competition for public offices or mandates. With regard to the details, the legislature has a considerable margin of appreciation and generalisation when laying down the incompatibility regulations for the members who are detached from state authority. f) It must be ensured that all members of the supervisory bodies of the public broadcasting corporations are not bound by instructions, and that they can only be dismissed for important reasons. It is for the legislature to set out the details. g) The legislature must enact regulations which ensure a minimum of transparency with regard to the work of the supervisory bodies of public broadcasting. The Constitution does not outline in detail the degree of transparency which is expedient for an adequate exercise of functions. The minimum required includes, however, that information about the composition of the bodies and committees is easily available, and that, at least in principle, the minutes of the meetings are accessible in a timely manner, or that the public receives substantial information about the subject-matter and the results of the deliberations in another way.

3. a) The regulations concerning the composition of the Television Council pursuant to § 21 ZDF-StV violate Art. 5 sec. 1 sentence 2 GG in several respects.

The share of the members of the Television Council who are directly appointed as persons who are part of state authority or close to it exceeds the constitutional threshold of one third. According to the standards that have been described, currently the 16 representatives of the Laender, the 3 representatives of the federal level, the 12 representatives of the political parties, and the 3 representatives of local government are such persons. Taken together, they constitute a share of about 44% of the members of the Television Council. With regard to decisions that require a majority of three fifths of the statutory members, this is at the same time tantamount to a blocking minority.

Only if it is interpreted in conformity with the Constitution, there are no objections under constitutional law against § 21 sec. 3 in conjunction with sec. 6 ZDF-StV, pursuant to which the members who are detached from state authority, who shall be appointed pursuant to § 21 sec. 1 g to q ZDF-StV, shall be appointed by the Minister-Presidents, unanimously wherever possible, on the basis of a proposal consisting of three candidates. According to current practice, these provisions can, and must, be interpreted to mean that the Minister-Presidents are generally bound by the lists of proposals submitted by the associations and organisations entitled to appoint persons to the supervisory bodies, and that it is only possible to deviate from the lists if there are special legal reasons.

In contrast, the appointment of the members mentioned in § 21 sec. 1 r ZDF-StV, who are selected unanimously wherever possible by the Minister-Presidents pursuant to § 21 sec. 4 in conjunction with sec. 6 ZDF-StV, which does not contain any further stipulations, does not satisfy the requirements placed on an appointment of members who are detached from state authority. At present, the decision about the selection of these members is made directly by the state executive.

§ 21 sec. 1 ZDF-StV does not satisfy the requirements constitutional law places on ensuring detachment from state authority to the extent that no sufficient incompatibility regulations are provided for the members who are detached from state authority, and that the independence of all members is not sufficiently safeguarded. Apart from this, there are no regulations that provide a minimum of transparency for the work of the Television Council; the restrictive provisions in the by-laws of the ZDF and in the by-laws of the Television Council are not sufficient. b) The regulations concerning the composition of the Administrative Council pursuant to § 24 ZDF-StV violate Art. 5 sec. 1 sentence 2 GG for the same reasons.

With a share of 6 out of 14 members, the share of the state members pursuant to § 24 sec. 1 a and c ZDF-StV exceeds the constitutional threshold of one third. Moreover, the state members have a blocking minority for decisions that require a majority of three fifths of the statutory members. Apart from this, the provision is not in conformity with the Constitution because the members appointed pursuant to § 24 sec. 1 b ZDF-StV are elected by a Television Council whose composition is not sufficiently detached from state authority, and no sufficient incompatibility regulations exist for them either.

As is the case for part of the Television Council members, the personal legal position of the members of the Administrative Council is not sufficiently safeguarded. Moreover, there is no legal provision that contains regulations concerning the transparency of the work of the Administrative Council.

4. To the extent that §§ 21 and 24 ZDF-StV violate Art. 5 sec. 1 sentence 2 GG, it is only established that they are incompatible with the Basic Law, connected with the order that they can be applied on a transitional basis until new legislation is enacted. Until 30 June 2015 at the latest, the Laender are to enact new legislation that satisfies the requirements under constitutional law and that is authoritative at least for the next regular elections of the supervisory bodies.

Dissenting Opinion of Justice Paulus:

I disagree with the judgment to the extent that it declares permissible under constitutional law the participation of members of the executive in the Zweites Deutsches Fernsehen, a broadcasting corporation at the same time required to be independent or at least detached from state authority.

Public broadcasting does not serve to disseminate state information, but to offer broadcasts which reflect the diversity of opinions and the breadth of positions in society. In line with the present judgment, I continue to consider this fundamental approach of the Federal Constitutional Court correct. Today's judgment, however, implements its own approach only in part, although it has become apparent since the Federal Constitutional Court's first broadcasting judgment that the composition of the supervisory bodies of the Zweites Deutsches Fernsehen does not satisfy the principle of detachment from the state. Politics does not adapt to the obligations of the supervisory bodies, rather, the supervisory bodies, and, along with them, the broadcasting corporations adapt to politics.

If the bodies that supervise radio and television are controlled by those the latter are supposed to control, this impairs their function. By allowing the appointment of members of the executive branch, the judgment re-defines state authority from a threat to an element of diversity. In my view, for ensuring diversity in the Zweites Deutsches Fernsehen, limiting the combined share of representatives of state authority and those "close to state authority" to one third is not sufficient. Instead, I consider it necessary that the supervisory bodies are generally free of representatives of the executive in order to emancipate them from state influence, as is the case with most broadcasting corporations that are operated by the Laender. Representatives of the executive branch are in a greater danger of being instrumentalised politically than members of parliaments and of parties, whom the Constitution mandates with the roles of representatives of the people and intermediaries between state and citizens.

At most, it may be acceptable to permit the participation of a small share of members of the executive in the Television Council to represent "differences in perspective" which are due to the federal structure of Germany. A membership of representatives of the Laender executive in the Administrative Council, however, must be precluded altogether. Concerning the latter, the vague requirements which the judgment imposes with regard to the plurality among the state representatives will hardly ensure diversity in an effective manner.