8. Broadcasting judgment
The 8th broadcast judgment of the Federal Constitutional Court of 22 February 1994 ( reference: BVerfGE 90, 60-107 - license fee ) referred to in the German jurisprudence , the eighth in a series of judgments of the Constitutional Court to broadcasting freedom . The judgment deals with the state freedom of broadcasting, which must also be secured through independent funding.
facts
The judgment concerned the so-called "cable groschen", a share of 20 pfennigs in the license fee for television sets of 11.20 DM at the time, which was used to finance the cable pilot projects . The level of the license fee was set by the federal states in the form of a state treaty ; the commission to determine the financial needs of broadcasters (KEF) already existed, but only had an advisory function, so that political requirements such as the expansion of the television cable network were regularly included in the calculation of fees.
The plaintiffs asked Bayerischer Rundfunk to repay the cable groschen because they were of the opinion that this was an inadmissible special charge . The Bavarian Administrative Court , as the court of appeal , then put the question to the BVerfG as to whether the decision of the Bavarian State Parliament approving the State Treaty on the setting of fees was constitutional.
Summary of the judgment
The BVerfG declared the structure of the fee setting to be incompatible with Article 5 (1) sentence 2 of the Basic Law. The setting of fees must be organized in a state-free manner. No program control or media policy may be operated through the back door of fee setting. The financial requirement may only be checked with regard to the broadcast contract, economic efficiency and economy. This requires a procedure that guarantees public service broadcasting the necessary resources and at the same time prevents any influence.
For the reasons
- P. 87: “Among the media, broadcasting is of particular importance because of its broad impact, topicality and suggestive power. ... freedom of broadcasting is ... above all freedom of programming. "
- P. 88: “As comprehensive as the state is as a guarantor of a comprehensive freedom of broadcasting, its representatives are themselves in danger of subordinating broadcasting freedom to their interests. The basic rights of communication were originally directed against the control of the communication media by the state, and they still find their most important field of application today in the defense against state control of reporting. "
- S. 88/89: “This protection does not only refer to the obvious dangers of direct control or disciplinary measures of broadcasting. Rather, it also encompasses the more subtle means of indirect influence with which state organs can influence the program or exert pressure on those active in the broadcasting sector. The state has such means because it is the one who, in the interests of the norm objective of Article 5, Paragraph 1, of the Basic Law, organizes, licenses, provides, supervises and partly finances broadcasting. The possibilities of influencing journalistic activity that are inevitably opened up should, however, be eliminated as far as possible. "
- P. 92: "The close connection between program free and financial resources forbids ... giving the legislature a free hand in setting fees. ... However, the broadcasters themselves cannot determine their financial framework either, because they cannot guarantee that they will always keep within the framework of what is necessary for the function ... "
- P. 102 “However, precautions are necessary to effectively enforce the state's obligations when setting fees, following Article 5, Paragraph 1, Sentence 2 of the Basic Law. A tiered and cooperative procedure is best suited to this ... "
- P. 103 "If the legislature ties in with this [on a body like the KEF], then in the interests of broadcasting freedom it is obliged to regulate the task, composition and procedure of the body by law and also to legally secure the independence of its members."
Consequences of the judgment
As a result of this ruling, the KEF's fee- setting procedure was reorganized. Since then, fees have been set in three steps: First, the broadcasters report their needs to the KEF. This checks the registered needs and recommends a certain fee amount to the countries. The fee is then set by the state parliaments. However, they are only allowed to check the social compatibility of the fee.
