Broadcast decision
German broadcasting law was and is strongly influenced by the decisions of the Federal Constitutional Court . The decisions that have been made to date have accompanied the development of the German broadcasting landscape from the beginnings of the broadcasting corporations combined in ARD to today's dual broadcasting system of public and private broadcasting and have made their framework conditions more specific. The openness and vagueness of the constitutional term broadcasting led, according to widespread opinion, that the Federal Constitutional Court itself de facto acted as a legislator by making very detailed specifications, partly through obiter dicta , with regard to the design of broadcasting law. This has often been heavily criticized in legal literature. From this quasi-legislative role, the counting of the so-called broadcast judgments began. The count is therefore inconsistent. In some cases, only those decisions of the so-called classical canon are counted among the broadcasting judgments that have such a pioneering function and should serve as a template for the formation of legislative will.
In the following, the fourteen broadcasting decisions ( judgments and resolutions ) are listed with their sources and most important theses. A detailed description of the decisions can be found in the articles on the individual decisions.
Individual broadcasting decisions
Judgment of February 28, 1961: Deutschland-Fernsehen-GmbH
→ Main article: 1st broadcast judgment
BVerfGE 12, 205–264 Deutschland-Fernsehen-GmbH (1961)
- State freedom of broadcasting
- Legislative competence of the states for broadcasting events (Art. 30 GG)
- Federal responsibility only for transmission technology, not for content (Art. 73 No. 7 GG)
Judgment of July 27, 1971: sales tax
BVerfGE 31, 314 VAT (1971)
- Public broadcasters can invoke the fundamental right to freedom of broadcasting from Article 5, Paragraph 1, Clause 2 of the Basic Law; in this respect they are entitled to the legal remedy of a constitutional complaint .
- Broadcasters are not “commercial or professional” in the sense of tax law, because they fulfill a public task and have a function for the whole of the state
- Broadcasting must not be left to the “free play of forces”, but is a matter for the general public
Judgment of June 16, 1981: FRAG
→ Main article: 3rd broadcast judgment
BVerfGE 57, 295 FRAG (1981)
- Admissibility of private broadcasting
- Broadcasting freedom is a serving freedom for the free and comprehensive formation of opinion
- Private broadcasting only on a legal basis that ensures diversity of opinion; There are various design options as an internal plural or external plural (market) model
Judgment of November 4, 1986: Lower Saxony
→ Main article: 4th broadcast judgment
BVerfGE 73, 118 Lower Saxony (1986)
- Dual broadcasting system : private broadcasting permitted as long as basic service is secured by public broadcasting.
Decision of March 24, 1987: Baden-Württemberg
BVerfGE 74, 297 Baden-Württemberg (1987)
- Basic care does not mean minimal care
- Dynamic broadcasting term: also "broadcast-like communication services" (online services) are included.
Judgment of February 5, 1991: WDR
→ Main article: 6th broadcast judgment
BVerfGE 83, 238 WDR (1991)
- Guarantee of existence and development for public broadcasting
- Mixed financing permitted
- Dynamic concept of universal service: the function of broadcasting according to Art. 5 GG results in the openness of the public-law program offer for new forms and content as well as for new services using new technology and new transmission channels.
Decision of October 6, 1992: Hessen 3
BVerfGE 87, 181 Hessen 3 (1992)
- Funding guarantee is part of freedom of broadcasting
- Advertising ban for public broadcasting is a permissible form of freedom of broadcasting
Judgment of February 22, 1994: Radio license fees I
→ Main article: 8th broadcasting judgment
BVerfGE 90, 60 fee judgment (1994)
- State freedom to set fees
- New regulation of the KEF procedure required
Judgment of March 22, 1995: EC television directive
BVerfGE 92, 203 EC TV Directive (1995)
- Competence of the EC
- Directive 89/552 / EEC (television directive)
Judgment of February 17, 1998: short reports
→ Main article: 10th broadcast judgment
BVerfGE 97, 228 short reports (1998)
- Short reporting right for television stations to prevent information monopolies in the case of exclusive broadcasting rights
Decision of February 20, 1998: Extra Radio Hof
→ Main article: 11th broadcasting judgment
BVerfGE 97, 298 Extra Radio Hof (1998)
- Fundamental rights of private broadcasters
Judgment of September 11, 2007: Broadcasting Fees II
BVerfGE 119, 181 (2007)
- Countries must not deviate from the KEF fee recommendation for media policy reasons . This option is only open to them "if the fee payers [are] unreasonably burdened by the amount of the fee" or the amount of the fees "[blocks] access to information for the payer"
Judgment of March 12, 2008: Involvement of parties in private broadcasters
BVerfGE 121, 30 (2008)
- The legislature is free to prohibit parties from direct or indirect participation in private broadcasting companies insofar as they can thereby exert a decisive influence on the program design or the program content. On the other hand, the absolute ban on political parties from participating in private broadcasting events is not a permissible legal form of freedom of broadcasting.
Judgment of March 25, 2014: ZDF State Treaty
BVerfGE 136, 9 (2014)
- The previous regulations of the ZDF State Treaty resulted in an excessive state influence. The supervisory bodies of the ZDF television council and the ZDF administrative council may only consist of a third of state and state-affiliated members. Even if the judgment only affected ZDF, the principle also applies to all other public broadcasters.
Judgment of July 18, 2018: levying of the broadcasting fee
1 BvR 1675/16 - Rn. (1-157)
- The obligation to pay broadcasting fees in the private and non-private sectors is essentially compatible with the constitution. What is incompatible with the general principle of equality, however, is that a license fee must also be paid for second homes.
Web links
- Christoph Gröpl : “Broadcasting decisions ” of the Federal Constitutional Court (PDF, 71 kB), status: 2009, accessed from the Saarland University website
- Scientific Advisory Board at the Federal Ministry of Finance : Expert opinion "Public law media - Task and funding" (PDF), edition: December 2014
swell
- ↑ Judgment of the Federal Constitutional Court of February 28, 1961 Az. 2 BvG 1, 2/60 via DFR
- ↑ Judgment of the BVerfG of July 27, 1971 Az. 2 BvF 1/68, 2 BvR 702/68 via DFR
- ^ Judgment of the Federal Constitutional Court of June 16, 1981 Az. 1 BvL 89/87 via DFR
- ^ Judgment of the BVerfG of November 4, 1986 Az. 1 BvF 1/84 via DFR
- ↑ Decision of the BVerfG of March 24, 1987 Az. 1 BvR 147, 478/86 via DFR
- ↑ Judgment of the BVerfG of February 5, 1991 Az. 1 BvF 1/85, 1/88 via DFR
- ^ Decision of the BVerfG of October 6, 1992 Az. 1 BvR 1586/89 and 487/92 via DFR
- ↑ Judgment of the Federal Constitutional Court of February 22, 1994 Az. 1 BvL 30/88 via DFR
- ^ Judgment of the BVerfG of March 22, 1995 Az. 2 BvG 1/89 via DFR
- ↑ Judgment of the Federal Constitutional Court of February 17, 1998 Az. 1 BvF 1/91
- ↑ http://www.bverfg.de/entscheidungen/rs19980220_1bvr066194.html Decision of the BVerfG, 1 BvR 661/94 of February 20, 1998
- ↑ Judgment of the Federal Constitutional Court of September 11, 2007 Az. 1 BvR 2270/05
- ^ Judgment of the Second Senate of the BVerfG of March 12, 2008, Az. 2 BvF 4/03
- ↑ BVerfG, judgment of the First Senate of July 18, 2018 - 1 BvR 1675/16 - Rn. (1-157)
