1. Broadcasting judgment
The 1st broadcast judgment of the Federal Constitutional Court of February 28, 1961 describes the first in a series of twelve judgments of the Federal Constitutional Court on freedom of broadcasting in German jurisprudence : In the first broadcast judgment , the establishment of Deutschland-Fernsehen GmbH was deemed not to comply with the Basic Law for the Federal Republic Germany (GG) discarded by agreement. This decision from 1961 was and is often referred to as the television judgment .
facts
Trigger for the documents before the Federal Constitutional Court Broadcasting -Kompetenzstreit between federal and countries was an attempt by Chancellor Konrad Adenauer to establish a controlled federally second nationwide television. The underlying idea behind “Adenauer TV” was presumably to counter the often government-critical reporting by broadcasters within the ARD with a more government-friendly program. According to Adenauer, the executives of the DPD and the NWDR deployed by the British occupying powers were too close to the SPD to be able to report in a balanced manner about the CDU governments. For this purpose, the Freie Fernsehen GmbH (FFG) was founded on December 5, 1958 in Frankfurt am Main . In order to win the federal states over to the idea, the Deutschland-Fernsehen GmbH was founded in July 1960 , with which the federal states should be enabled to participate in the project.
The judgment
Following a lawsuit by the SPD- governed federal states of Hamburg and Hesse , the Federal Constitutional Court ruled that, by founding Deutschland-Fernsehen GmbH, the federal government had not only violated the competency provisions of the Basic Law and the principle of federal-friendly behavior , but in particular also Article 5 of the Basic Law for the Federal Republic of Germany . On the principle of federal loyalty, the court stated:
"[...] [T] as procedere and the style of negotiations that are required between the federal government and its members and between the states in constitutional life are subject to federal-friendly behavior. In the Federal Republic of Germany all countries have the same constitutional status; they are states that are entitled to equal treatment in dealings with the federal government. Wherever the federal government tries to find a constitutionally relevant agreement on a question of constitutional life in which all federal states are interested and involved, the duty of federal-friendly behavior forbids it to act according to the principle of divide et impera, i.e. to split the federal states to seek an agreement with only some and to put others under pressure to join. That principle also prohibits the federal government from treating the state governments differently depending on their party-political direction in negotiations that affect all states, in particular for the politically decisive deliberations only involving representatives of the state governments that are close to it and the state governments that are close to the opposition in the league excludes. "
In the version of the Basic Law at that time, the federal government only had the exclusive legislative competence for the postal and telecommunications system (Art. 73 No. 7 old Basic Law). This competence (the same applies today to the postal system and telecommunications, Art. 73 No. 7 GG new version) only includes the transmission technology area, i.e. transmission technology. The reason for this is the interest of the general public in a nationwide allocation of the frequency ranges. In contrast, there is no federal competence for broadcasting in the Basic Law. Therefore, the legislative competence for broadcasting events according to Art. 30 GG belongs to the states.
The Federal Constitutional Court regards broadcasting as a public task due to the (then) shortage of frequencies and the high financial outlay, which private individuals are currently unable to cope with. As a factor and medium for forming opinions, however, broadcasting must be organized independently of the state.
In addition to the distance from the state, the Federal Constitutional Court also held the centralized control of the federal government to be unconstitutional and drew parallels with the broadcasting regulations during the Weimar period . At that time the radio was organized centrally and the control was the Reichspost . This, according to the Federal Constitutional Court, favored the state influence and misuse of broadcasting for propaganda purposes in the era of National Socialism . On the basis of these “lessons from Weimar”, under the jurisdiction of the Basic Law, only the technical side and not the content, the “cultural side”, should be the responsibility of the federal government.
With regard to the award of frequencies, the court puts the principle of federal-friendly behavior in the foreground and states that the federal government must not misuse its competence in the award of frequencies to exclude individual broadcasters who may appear (politically) unpleasant to it, so that the Basic Law to circumvent intentional decentralization unconstitutionally.
For the reasons
- The importance of Art. 5 GG for broadcasting cannot be appreciated without taking into account the content of Art. 5 GG just presented . Without prejudice to a peculiarity of broadcasting to be discussed, broadcasting, like the press, is one of the indispensable modern means of mass communication through which public opinion is influenced and this public opinion is helped to shape. Broadcasting is more than just a “medium” for forming public opinion; it is an eminent “factor” in forming public opinion. This participation in the formation of public opinion is by no means limited to the news programs, political commentaries, series of programs about political problems of the present, past or future; Opinion formation also takes place in radio plays, musical performances, transmissions of cabaret programs right through to the scenic design of a performance.
Consequences of the judgment
With the judgment, the introduction of a federal television program produced by the FFG failed , and the FFG was liquidated. As a result of the decision, the radio stations Deutschlandfunk (as the successor to the German long-wave transmitter ) and Deutsche Welle, established by the law on the establishment of broadcasters under federal law of November 29, 1960, were based on the competence for foreign relations from Article 32 of the Basic Law. The second German television was founded on the basis of a state treaty ( ZDF-StV ).
See also
Web links
- BVerfG, judgment of the Second Senate of February 28, 1961, Az. 2 BvG 1, 2/60, BVerfGE 12, 205 - Broadcasting judgment , full text.
- Audio of the judgment of February 28, 1961 on SWR2 archive radio
Individual evidence
- ↑ Az. 2 BvG 1, 2/60. Reference: BVerfGE 12, 205–264
- ↑ TELEVISION REVIEW / Time to Rethink Der Spiegel from 1961 at spiegel.de
- ↑ History of ZDF, Part 1: Origin and Development 1961 - 1966 by Klaus Wehmeier
- ↑ Wolfgang Brenner - The Federal Chancellor was fed up with it. FAZ of March 27, 2013. Retrieved on March 27, 2013.
