Rundfunk Berlin-Brandenburg
In an order published today, the First Senate of the Federal Constitutional Court rejected a constitutional complaint lodged by public broadcaster Rundfunk Berlin-Brandenburg (rbb). The challenged provisions of the rbb State Treaty concern the regionality and organisation of rbb as a public broadcaster for more than one Land within the system of federal sharing of responsibility.
rbb is a public broadcasting corporation jointly established by the Länder Berlin and Brandenburg. Its constitutional complaint is directed against the acts of approval of the State Treaty on Rundfunk Berlin-Brandenburg concluded between the two Länder in November 2023 (rbb State Treaty), which provides a new legal framework for rbb. The public broadcaster asserts that several provisions of the State Treaty violate its freedom of broadcasting following from Art. 5(1) second sentence of the Basic Law (Grundgesetz – GG). One of the aspects challenged by rbb is a newly created Board of Directors. The Board of Directors is responsible for managing rbb and is composed of the Director-General (Intendanz) and two other directors. The directors act autonomously in their respective areas of responsibility. The constitutional complaint is also directed against the minimum number of locations of regional offices and regional broadcast studios laid down in the State Treaty, the new management level for the Land programmes in Berlin and Brandenburg and the required minimum duration for separate TV programmes in the two Länder. Furthermore, rbb claims that the introduction of new provisions requiring the public advertising of positions and regarding the liability of the Director-General and of the members of the Broadcasting Council and Administrative Council violate its freedom of broadcasting.
The constitutional complaint is unsuccessful. Those provisions that were admissibly challenged do not violate the freedom of broadcasting of rbb. The provisions adopted by the Land legislators do not violate the constitutional requirements on how to shape and organise public broadcasting.
Facts of the case:
In November 2023, the Länder Berlin and Brandenburg concluded the rbb State Treaty, which was approved by law in the Land parliaments. The State Treaty entered into force on 1 January 2024. It has since provided a new legal framework for rbb. In concluding the new State Treaty, the Land legislators intended to address shortcomings at rbb, which had emerged in 2022, and to counteract structural flaws through an effective compliance system and the greatest possible degree of transparency. Moreover, the regional focus of rbb was to be guaranteed by an appropriate distribution of resources and locations.
With its constitutional complaint, rbb challenges several provisions of the rbb State Treaty. These can be summarised as follows:
1. § 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. This Board of Directors is composed of the Director-General and two other directors. The competences of the Board of Directors are determined in consideration of the overall responsibility of the Director-General. They include matters of considerable importance and the resolution of differences of opinion affecting several divisions. The State Treaty sets forth that the directors independently manage their divisions, subject to the overall responsibility of the Director-General and the deliberations of the Board of Directors.
2. Pursuant to § 2(3) of the rbb State Treaty, rbb operates regional broadcast studios, at a minimum in Cottbus/Chóśebuz and Frankfurt (Oder), and regional offices, at a minimum in Brandenburg an der Havel, Prenzlau and Perleberg.
3. § 4(2) no. 1 of the rbb State Treaty provides 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 separately. For the Land programmes, § 4(4) third and fourth sentence provide for an additional management level that directly reports to the Programme Director.
4. For the first time, the State Treaty introduces a provision requiring the public advertising of open positions at rbb (§ 8(3)). The State Treaty does not provide for any exceptions from the requirement to advertise positions.
5. § 16(3) and (4) and § 31 of the rbb State Treaty provide for liability of the members of the Broadcasting Council and the Administrative Council and the Director-General for damages resulting from the culpable breach of their respective duties. In particular, under these provisions, liability insurance taken out by rbb must include an appropriate deductible. For the members of the supervisory bodies, this deductible is at least the amount of their annual compensation or remuneration; for the Director-General, it is at least ten percent of the damage and may not exceed their annual fixed remuneration.
Key considerations of the Senate:
I. The constitutional complaint is admissible for the most part.
The Federal Constitutional Court has jurisdiction to review the challenged provisions of the State Treaty. While the contents of the State Treaty relate to the safeguards set out in Art. 5 of the European Media Freedom Act, which provides for an obligation of Member States to ensure that public service media providers are editorially and functionally independent, the principles following from these minimum standards must be determined at the domestic level. Domestic law is therefore not fully determined by EU law.
The constitutional complaint is inadmissible insofar as rbb challenges that there are no exceptions to the requirement of publicly advertising positions. The complainant also fails to sufficiently demonstrate the adverse effects arising from the challenged rules on liability. rbb is the beneficiary of liability claims. It is true that rbb demonstrates that the consequences arising from the liability rules may also concern the fulfilling of its mandate. It argues that such liability risks may deter qualified candidates and therefore adversely affect its ability to recruit the right staff. However, rbb fails to substantively show that the rules on liability may in fact deter candidates. It does not discuss the contents of the rules on liability in a sufficiently substantiated manner.
II. With regard to the other – admissibly challenged – provisions of the State Treaty at issue, the constitutional complaint is unfounded. The provisions do not violate the freedom of broadcasting of rbb.
1. Freedom of broadcasting serves to comprehensively guarantee the free formation of individual and public opinion. 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. Broadcasting is a medium and a factor of this constitutionally protected process. It is for the legislator, which has broad leeway in this regard, to give shape to public broadcasting and its structural features and to ensure that the necessary preconditions exist.
In giving shape to public broadcasting, the legislator must meet the requirements for ensuring the proper functioning of public broadcasters, their editorial autonomy and a necessary distance from the state, with the latter requirement following from the need to ensure diversity. If the legislator fails to satisfy these constitutional requirements and thereby adversely affects the realisation of the guarantees of the freedom of broadcasting, this violates the freedom of broadcasting of public broadcasters.
The Constitution does not prescribe a specific executive model that the legislator must put in place at public broadcasting corporations. The legislator is granted leeway as long as it does not endanger the proper functioning of public broadcasting. However, in order to ensure effective scrutiny, a pluralist executive model requires internal rules that allow for a clear allocation of responsibility between executive members. Editorial freedom means that public broadcasters can freely decide how to fulfil their journalistic tasks, without external influence. A public broadcaster’s decision regarding the contents and formats considered necessary also comprises a decision regarding the time required for the realisation of such contents, and thus regarding the scope of the programme. Moreover, the organisation of public broadcasters must be such that all relevant societal stakeholders are represented and that freedom of reporting is not affected. This requirement of diversity gives rise to the requirement of distance from the state. 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. 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. This is because public broadcasting is a matter for the public; it must be fully independent, impervious to outside influence and above party politics.
2. In applying these standards, the admissibly challenged provisions do not violate the freedom of broadcasting of rbb.
a) In shaping and organising the executive structure at rbb by introducing a balance of competences, the legislator endangers neither the proper functioning of rbb nor the performance of its tasks.
aa) The division of competences among the executive bodies at rbb allows for mutual scrutiny that ensures that its tasks can be performed. rbb objects to the fact that the Director-General acting on their own is weakened as their competences are diminished, yet this does not necessarily affect the proper functioning of rbb, but initially only results in different decision-making structures. 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.
bb) The delineation of competences of the Board of Directors in relation to the overall responsibility of the Director-General does not endanger the proper functioning of rbb and constitutes a sufficiently effective and clear division of competences. All bodies are allocated their own substantial area of responsibility to perform executive tasks. The catalogue of rules regarding the competences of the Board of Directors delineates the competences in a sufficiently specific manner that ensures the proper functioning of rbb. The Director-General’s right to object to decisions of the Board of Directors serves to prevent decisions that the Director-General considers to be untenable in view of their overall responsibility.
The rules for decision-making of the Board of Directors are also governed by a sufficiently specific framework. They do not endanger the proper functioning of rbb. It is true that the rbb State Treaty does not contain an express provision regarding this essential organisational matter. However, it can be derived from the Director-General’s right to object 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 majority principle is not merely governed by the Rules of Procedure.
cc) Finally, the proper functioning of rbb is not endangered by the specific design of the competences and procedures for overcoming gridlock in decision-making when objections against decisions of the Board of Directors are lodged and no agreement is reached following such objection. Gridlock that is merely theoretically conceivable does not diminish the legislator’s leeway. 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 by providing for the possibility of changing the composition of the executive bodies. Given the significance of the consequence of dismissal, this increases the pressure to reach compromises before gridlock occurs. In this context, the internal duties that the executive members have towards rbb mitigate the potential for conflict.
b) Requiring a specific minimum number of locations for regional divisions – in the present case, two regional broadcast studios and three regional offices – does not raise constitutional concerns with regard to the realisation of the guarantees of the freedom of broadcasting. This provision of the rbb State Treaty serves to ensure that rbb is present across the entire territory covered by it and to enhance regional diversity in its programming. The provision does justice to rbb’s role as a public broadcaster that serves more than one Land. Regional programming meets the specific needs that follow from such a role in terms of providing rbb subscribers with relevant content that they identify with. The protection of media pluralism at the regional level is also an objective expressly recognised in Art. 11(2) of the Charter of Fundamental Rights of the European Union. The Land legislators specify rbb’s mandate in that rbb must offer an objective and comprehensive overview of Land and regional affairs concerning all important social, economic and cultural matters. The programmes provided by rbb must also give effect to the regional diversity of the Länder Berlin and Brandenburg and include the recognised minority language and culture of the Sorbian/Wendian people.
c) The addition of another management level for the Land TV programmes in Berlin and Brandenburg also does not violate the freedom of broadcasting of rbb. It is not evident that this would make management appreciably more difficult and thereby endanger the proper functioning of rbb. 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.
d) The provision requiring at least 60 minutes of separate TV programmes every day in the two Länder that must contain separate presentations of each of the two Länder does not violate the freedom of broadcasting of rbb. The editorial freedom of public broadcasters does include decisions on the time required and the scope of the necessary programmes. 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.
The minimum time slot that serves to foster identification with Land specific topics is rather limited in relation to the overall programme. 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. 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.