1. For the transmission of private broadcasts, Art. 5(1), second sentence, GG requires statutory regulation that provides for safeguards to ensure the freedom of broadcasting. This is also necessary when the special situation of broadcasting, occasioned by the scarcity of frequencies and the great financial expense associated with the transmission of broadcasts, is no longer pertinent in light of modern developments.
2. Among the issues to be regulated by the legislature is the decision on the guidelines applicable to the broadcasting order. Within the framework of the underlying regulatory model, the legislature must ensure that the overall programming of domestic broadcasters essentially corresponds to the existing variety of opinion. Furthermore, it must make binding those principles that guarantee a minimum of balance as to contents, objectivity and mutual respect. It must also provide for limited State supervision, regulate access to transmission of private broadcasts and, as long as access is not available to every applicant, adopt selection rules. Not to be decided, however, is whether the financing of private broadcasting requires statutory regulation.
3. The provisions on transmission of private broadcasts in the German language provided for in the Act on the Transmission of Broadcasts in the Saarland fail in fundamental respects to satisfy these constitutional requirements; they are therefore void.
Judgment of the First Panel of June 16, 1981 with respect to the oral pleadings of Mar. 24, 1981 -- 1 BvL 89/78 --
in the proceedings for constitutional review of Art. 1, No. 1, Section C, Titles I and II (§§ 38-46e) of the Second Act to Amend and Supplement the Act on the Transmission of Broadcasts in the Saarland (Gesetz über die Veranstaltung von Rundfunksendungen im Saarland; GVRS) of June 7, 1967 (Official Journal, p. 478) -- Order by the Administrative Court of the Saarland to stay the proceedings and submit the matter to the Federal Constitutional Court of Aug. 21, 1978 (5 K 915/76) --.
Article 1, No. 1, Section C, Titles I and II (§§ 38-46e) of the Second Act to Amend and Supplement the Act on the Transmission of Broadcasts in the Saarland (Gesetz über die Veranstaltung von Rundfunksendungen im Saarland; GVRS) of June 7, 1967 (Official Journal, p. 478) is not compatible with Art. 5(1), second sentence, and Art. 3(1) of the Basic Law and therefore void, to the extent that this regulates the private transmission of broadcasts in the German language.
EXTRACT FROM GROUNDS:
Subject of these proceedings is the question whether the provisions of the Act on the Transmission of Broadcasts in the Saarland relating to the private transmission of broadcasts in the German language are compatible with the Basic Law.
The Saarland was recently the first federal state to create statutory prerequisites for the transmission of private broadcasts (radio and television). Act No. 806 on the Transmission of Broadcasts in the Saarland (GVRS) of Dec. 2, 1964 (Official Journal, p. 1111) contains a Section C entitled "Private Broadcasters", which was amended and supplemented by Act No. 844 of June 7, 1967 (Official Journal, p. 478; Official Notice of the New Version of the GVRS, Offical Journal 1968, p. 558). Title I of this section (§§ 38-45) deals with general issues of the transmission of private broadcasts; Title II (§§ 46-46e) regulates broadcasts in the German language, and Title III (§§ 47-47b), those in foreign languages . . .
The provisions of relevance for the present proceedings read as follows:
A license shall be required for any party desiring to transmit broadcasts under private law.
Granting and Contents of the License
(1) The license shall be granted by the State Government. Ensuring the correct granting of the license shall be the responsibility of the State Minister-President. The license may be subject to restrictions. It is not transferable. A legal claim to the granting of the license does not exist.
(2) The license must describe in detail the type and length of broadcast transmissions permitted.
(3) The license shall be valid for the period set forth in it or, in the absence of such a stipulation, for ten years from the date of issuance.
(1) Notwithstanding § 46, private broadcasters must be established in the form of a corporation with principal place of business in the Saarland.
(2) The company charter must provide that the transfer of stock is subject to the approval of the company's supervisory board or the stockholders' meeting. The charter must stipulate that approval is to be denied when such transfer results in one person or one unified group of persons acquiring 50 percent or more of the capital or of voting power.
(3) - (5) . . .
(1) Private broadcasters shall be subject to State supervision.
(2) State supervision shall be exercised by an office (Supervisory Authority) designated by the State Government.
(3) The Supervisory Authority shall be empowered
1. to monitor broadcasts for whether they comport with statutory provisions, and
2. to monitor and to ensure that the conditions required of broadcasters (§§ 38, 39, 40, 46, 47) are consistently being fulfilled and that the restrictions listed in the license are observed.
Broadcasts in the German Language
1. General Provisions
A license may only be granted to those corporations whose charter provides to the Advisory Committee to be created pursuant to § 46 c rights of participation set forth in this Act and ensures that two members of this Committee are elected to the supervisory board.
(1) With respect to programming, §§ 10 and 11 apply accordingly.
(2) . . .
2. The Advisory Committee
(1) The general public shall be represented vis-à-vis the broadcaster by an Advisory Committee. The members of this Committee shall be obligated to advocate all interests of the broadcaster and the broadcasting recipients. They shall not be bound by any orders or directives. The Committee shall monitor the observance both of statutory provisions in the transmission of broadcasts and of the provisions of the company charter pertaining to it. It shall notify the broadcaster and the Supervisory Authority of relevant violations. It shall discuss all issues of fundamental importance for the broadcaster. It shall advise the broadcaster with regard to programming.
(2) The Advisory Committee shall draft its own standing rules.
(3) In accordance with its status as representative of the general public, the Advisory Committee shall be required to inform the public of its work. Details in this area shall be dealt with in the standing rules.
(4) Any action taken by the State Government pursuant to § 45 shall require the approval of the Advisory Committee.
(5) The Supervisory Authority may submit to the Advisory Committee for discussion further matters in general or in specific cases.
Composition of the Advisory Committee, Position and Term of Office of the Members
The Advisory Committee shall be composed of a maximum of 13 members. In all other respects, §§ 14(2), (3), 16 and 17 shall apply accordingly for the composition of the Committee and for the position and term of office of the members. § 14(2) (b) shall be applicable to the extent that membership in any other German-language broadcaster is precluded. Exceptions pursuant to § 14(2) (c) require the approval of two-thirds of the members of the Committee.
Procedure of the Advisory Committee
(1) - (5) . . .
(6) The members of the Advisory Committee in the broadcaster's supervisory board shall be bound by the directives of the Committee, insofar as this is permissible under the law of corporations.
(7) . . .
Sect. 10 of the GVRS - which is quoted in the principles of sect. 46a as well as the rules on the protection of minors, reads as follows:
Principles for Broadcasts
(1) The Saarland Public Broadcasting Company shall structure its programming within the framework of the constitutional, democratic order. Broadcasts are to facilitate the independent formation of opinion and may not unilaterally serve one party, one confession, one point of view, one profession, one community of interests or some other particular group. They must take into account the religious, moral and cultural concerns of the population of the Saarland.
(2) The Saarland Public Broadcasting Company is to promote international understanding, advocate peace and social justice, defend democratic freedom and only be committed to the truth.
§ 16 GVRS, to which reference is made in § 46 c and which was amendedby Act No. 1034 of July 16, 1975 (Official Journal, p. 890; correction, OfficialJournal, p. 994), reads as follows:
(1) The Broadcasting Council shall be composed of nominated and elected members. A deputy member shall be named for each member. Work in the Broadcasting Council shall be performed in an honorary capacity.
(2) The State Government, the Catholic Church and the Evangelical Church shall each nominate one member directly to the Broadcasting Council. In matters relating to confessional minorities, representative of these shall be called upon for advice.
(3) Every fraction in the State Parliament shall nominate one member each.
(4) Twenty additional members of the Broadcasting Council shall be elected following proposal by the Committee for Culture, Education and Sport. In so doing, large groupings within public life, in particular, from the cultural, social and economic areas, shall be heard.
(5) A by-election shall take place when a member resigns from his office and the remainder of his term amounts to at least six months. The byelection is valid for the remainder of the term of office of the member who resigned.
1. The Complainant in the proceedings below, the Freie Rundfunk AG in Gründung, has since 1967 sought to obtain a license.
. . .
. . .
. . .
As a result of the oral hearing on Aug. 21, 1978, the Administrative Court ordered on the same day that the proceedings be stayed, and it submitted to the Federal Constitutional Court pursuant to Art. 100(1) GG the question as to whether §§ 38, 40(1), 46 and 46b(1) GVRS -- to the extent that these provisions regulate the private transmission of radio broadcasts in the German language -- are compatible with the Basic Law and, if not, whether they are void, with the proviso that Section C, Titles I and II are on the whole void insofar as the latter relate to the above-described transmission of broadcasts.
a) The Administrative Court considered this submitted question to be controlling as to the decision ultimately to be reached. In the event that the provisions submitted for review are declared valid, the Court stated that it was prepared to admit the complaint in the main petition. The Court indicated that, assuming the latter to be the case, the Complainant's request would prove to be justified, since reasons that could -- within the scope of discretion accorded to the authorities -- appropriately justify a denial of the license application are not evident. Rather, the Court found that the matter involved a case of reduced discretion. Under these circumstances a decision other than to grant the license would be an illegal mishandling of the discretionary power .
. . .
In the event that the provisions submitted for review are held to be legally invalid, the Court has stated that the Complainant's claim must be rejected, since in this case a statutory rule is lacking as is necessary to maintain the constitutionally mandated freedom of broadcasting.
b) With regard to the merits of the case, the Administrative Court found that the provisions submitted for review were incompatible with the guarantee of freedom of broadcasting in Art. 5(1), second sentence, GG; the organization established by law for broadcasters does not adequately guarantee that all societally relevant groups can exercise influence in the organs of broadcasters and have a say in the latter's overall programming. The social forces represented in the Advisory Committee were found to be restricted to monitoring the observance of legal provisions, pointing out violations, discussing questions of fundamental importance and advising in programming. Thus, these forces can neither effectively exercise influence nor is it assured that they can have a say in overall programming. In contrast to the Broadcasting Council of the Saarland Public Broadcasting Company, the Advisory Committee lacks powers enabling it to perform directly or indirectly the functions incumbent upon it as representative of the general public. Therefore, there is lacking an adequate assurance against the danger that broadcasting power will be concentrated in one societal group. This assurance, which is required by the constitutional guarantee of freedom of broadcasting, was held to be particularly necessary for private broadcasters, since special dangers are looming in view of the profit-making motive associated with private financing and, even more, due to the possibility of unilateral exercising of influence.
These constitutional shortcomings in broadcasting organization, said the Court, are moreover unable to be compensated for by further statutory rules. Effective influence is not guaranteed by the fact that the Advisory Committee must be represented in the supervisory board with two members, nor can the restrictions on the transfer of stock provided for in § 40(2) of the Act ward off the danger of unilateral power positions. Furthermore, neither State supervision nor the rule dealing with forfeiture of the license were found to be suited to dispensing with the abovedescribed deficiencies in societal representation. The Court also determined that it was just as impossible to fulfill the requirements of freedom of broadcasting by interpreting the relevant provisions in conformity with the Constitution or by imposing restrictions. As a result, the Administrative Court held that its decision turned on the clarification of this constitutional issue.
Comments on the submitted matter have been made by the Federal Minister for the Interior -- who limited himself to the admissibility of the submission -- and by the Complainant in the proceedings below. Furthermore, statements have been introduced by the Government of the State of Lower Saxony, which submitted an expert opinion by Federal Constitutional Court Justice (retired) Prof. Dr. Geiger, and the Government of the State of Hesse, which was joined by the Senates of the States of Bremen and Hamburg; the latter is accompanied by an expert opinion by Prof. Dr. Bethge, whose legal appraisal represents the position of the State Government of Hesse. Also submitting comments were the 7th Senate of the Federal Administrative Court, the Working Group for Public Broadcasting Companies in the Federal Republic of Germany (ARD) -- which took as a basis an expert opinion by Prof. Dr. Badura -- the Saarland Public Broadcasting Company and the Federal Association of German Newspaper Publishers. The State Parliament and the State Government of the Saarland did not submit statements.
1. To the extent that the statements are directed at the admissibility of the submission, this question is sometimes negated, sometimes affirmed. . . . (elaboration by the Court)
2. With regard to the merits of the matter, the comments and expert opinions likewise arrived at different results.
a) The Complainant in the proceedings below, the Government of the State
of Lower Saxony and the Federal Association of German Newspaper Pub-
lishers consider the provisions submitted for review to be constitutional . . . .
(elaboration by the Court)
b) On the other hand, the standpoint taken in the comments by the Government of the State of Hesse and the ARD, in the expert opinions by Profs. Bethge and Badura, and in the comments made by the 7th Senate of the Federal Administrative Court and the Saarland Public Broadcasting Company is that
the provisions submitted for review are not compatible with the Basic Law .
. . . (elaboration by the Court)
The State Government of Hesse, Profs. Bethge and Badura and the 7th Senate of the Federal Administrative Court reached the result that the provisions of the Act on private broadcasting were constitutionally deficient.
. . .
The ARD pointed out that the provisions submitted for review had, in violation of time limits provided for in the rules of procedure, been introduced and then adopted in the State Parliament of the Saarland within one day. A procedure of this sort was said to be incompatible with democratic, constitutional principles and mean that the Act is unconstitutional.
. . .
In the oral hearing of March 24, 1981, the following submitted comments:
For the Federal Government, Ministry Director Dr. Schiffer; for the Complainant in the proceedings below, the attorney Dr. Theisen; for the Government of the State of Hesse, the Senate of the State of Bremen and the Senate of the State of Hamburg, Profs. Dr. Denninger and Dr. Bethge; for the Government of the State of Lower Saxony, Dr. Starck; for the ARD and the Saarland Public Broadcasting Company, the attorney Dr. Massen and Prof. Dr. Badura.B.
The submission is admissible. . . . (detailed substantiation by the Court).
The regulation undertaken in Section C, Titles I and II, by the Act on the Transmission of Broadcasts in the Saarland for broadcasts in the German language fails in essential respects to satisfy the relevant requirements of the Basic Law; it is therefore void.
By way of the provisions under review, the legislature of the Saarland basically permitted private broadcasting. The validity of the Act's private broadcasting provisions regarding the transmission of broadcasts in the Saarland is thus not able to turn on the questions discussed in the various statements, expert opinions and in the remarks during the oral hearing, namely: whether the exclusion of private broadcasting in favor of public corporations is still compatible with the Basic Law even under current and future technical conditions, and whether in this context there is a constitutional duty to introduce private broadcasting. Rather, constitutional review must instead be limited to the question of whether the Saarland regulation is compatible with the Basic Law. In resolving this, it is unnecessary to reach a decision on the issue dealt with in the written and oral comments of whether there is a constitutional right to the transmission of private broadcasts.
Within this framework, it may also be left unresolved whether the provisions submitted for review are constitutionally objectionable with regard to the way in which they came about. Regardless of the reservations asserted particularly by the agents of the ARD against the hasty enactment by the State Parliament of the Saarland, the unconstitutionality of these provisions results from a violation of specific constitutional standards, in particular, those flowing from the freedom of broadcasting as guaranteed by Art. 5(1), second sentence, GG.
Art. 5(1), second sentence, GG requires that statutory regulation be made for the transmission of private broadcasts. This is to provide the necessary safeguards to ensure freedom of broadcasting.
1. In order to be able to be effective, freedom of broadcasting as constitutionally guaranteed by Art. 5(1), second sentence, GG must be given shape by statute. This results from the mandate and special nature of this guarantee.
a) Freedom of broadcasting serves the same goal as all guarantees in Art. 5(1) GG: ensuring free individual and public formation of opinion, and this in comprehensive sense, not limited to mere reporting or to propagation of political opinions but rather every propagation of information and opinion (cf. BVerfGE 12, 205  -- Germany Television; BVerfGE 31, 314  -- Business Tax; BVerfGE 35, 202 [222 f.] -- Lebach). Free formation of opinion takes places in a process of communication. On the one hand, this presupposes the liberty to express and disseminate opinions and on the other, the liberty to take note of opinions once expressed, to inform oneself. Since Art. 5(1) GG guarantees the freedom to express and disseminate opinions and freedom of information as human rights, it also seeks to protect this process constitutionally. Art. 5(1) GG sets up subjective rights here; but in this context, it also gives freedom of opinion the force of law by making it an objective principle of the overall legal system, whereby subjective and objective legal elements modify and support one another (cf. BVerfGE 7, 198 [204 f.] -- Lüth).
Broadcasting is a "medium" and a "factor" of this constitutionally protected process of free formation of opinion (BVerfGE 12, 205 ). Accordingly, freedom of broadcasting is a freedom serving the freedom of formation of opinion in the latter's subjective and objective legal elements: under the conditions of modern mass communication, it forms a necessary addition and reinforcement of this freedom; it serves the mandate of ensuring free, comprehensive formation of opinion by way of broadcasting.
This mandate defines the special nature and the significance of freedom of broadcasting:
Free individual and public formation of opinion by broadcasting initially requires that broadcasting be free of State dominance and influence. To this extent, freedom of broadcasting has, as do the classic rights of liberty, a "warding-off" (of interference by the State) significance. At the same time, however, this alone does not ensure that which must be guaranteed. Mere freedom from the State does not mean that free, comprehensive formation of opinion by broadcasting is made possible; this mandate cannot be fulfilled by a mere negative duty. On the contrary, a positive order is necessary, which ensures that the variety of existing opinion is expressed in broadcasting as widely and completely as possible and that in this way, comprehensive information is offered. In order to achieve this, substantive, organizational and procedural rules are necessary that are oriented to the mandate of freedom of broadcasting and are thus suited to giving effect to that which Art. 5(1) GG seeks to guarantee.
b) The legal framework thus required is subject to a proviso (BVerfGE 47, 46 [78 f.] -- Sex Education; BVerfGE 49, 89 [126 f.], with further references -- Kalkar): Necessary decisions are fundamental decisions since they are, apart from the technical meaning of broadcasting for the individual and public life of today, made in an area of relevance for basic rights and are of fundamental importance for the realization of basic rights (BVerfGE 47, 46 ). In particular, a variety of basic rights positions approach one another here, which may then collide: on the one hand, the claim arising from freedom of information to comprehensive, truthful information and, on the other, the freedom of those persons to express opinions who create the programs or comment in broadcasts. It is a matter for the legislature to balance out such collisions.
This proviso is a (state) parliamentary proviso (cf. BVerfGE 47, 46 ): That which is essential for guaranteeing freedom of broadcasting must be determined by Parliament itself; it may not leave the decision on this to the executive, such as in the form of general authority covering the power to make restrictions, and it may also not do so in a manner that, while not express, by its nature transpires by way of inadequately specified regulation. The guarantee of freedom of broadcasting may just as little be placed at the mercy of a rule in the broadcaster's charter or contractual rules.
The mandate following from Art. 5(1) GG that freedom of broadcasting be given a legal structure does not, however, give authority to restrict the basic right. This is only permissible under Art. 5(2) GG, according to which the rights listed in para. 1 find their limits in the provisions of general laws, the provisions of law for the protection of youth and by the right to inviolability of personal honor.
It is a decision for the legislature itself as to how it wishes to fulfill its mandate. The Basic Law does not dictate that it provide the organization of broadcasting with a certain form; the sole issue is that free, comprehensive and truthful formation of opinion in the above-described sense is guaranteed, that impairments or erroneous developments are avoided. In particular, the legislature must provide for safeguards that ensure that broadcasting is not left to the mercy of one or several societal groups, that all relevant societal forces have their say and that the freedom of reporting remains unimpaired (cf. BVerfGE 12, 205 ; BVerfGE 31, 314 [325 f.]).
c) This necessity that statutory regulation be enacted providing a framework continues to exist even when the special situation of broadcasting, occasioned by the scarcity of frequencies and the large financial expenditure for the transmission of broadcast offerings, is no longer applicable in the light of modern developments. The Federal Constitutional Court has assumed in its holdings thus far that this special situation exists (BVerfGE 12, 205 ; BVerfGE 31, 314 ); it has not yet been resolved what will be applicable once this special situation no longer exists (cf. BVerfGE 31, 314 ). In this case as well, however, the constitutional requirement remains in place that safeguards be provided for to ensure freedom of broadcasting. In a situation where it is absolutely necessary to restrict this sector to only several broadcasters, such may become necessary -- and call for other means as well -- to a greater extent than in a situation where this restriction no longer exists. However, it still remains necessary to provide for a guarantee of freedom of broadcasting in the described sense by way of statutory safeguards.
Even if the existing restrictions were to be removed, it could not be expected with any degree of certainty that the entire spectrum of programming would meet the requirements of freedom of broadcasting by virtue of the precepts inherent in competition. There are of course certain indications that a limited variety would thereby arise, as can be found, e.g., in the area of supraregional newspapers. However, this is only one possibility. With regard to the press, historical developments have resulted in a certain equilibrium, such that the guarantee of comprehensive information and formation of opinion through the press today may be satisfied by ensuring the status quo; but in the field of private broadcasting, it cannot be assumed that such a situation exists, at least not yet. It is therefore uncertain whether by remedying the deficiencies existing in "overall programming" -- a term that can be used to denote the embodiment of all programs broadcast domestically -- all or at least an appreciable number of societal groups will actually have their say, i.e., whether a "market of opinions" will arise in which the spectrum of opinions finds unabridged expression. Moreover, the possibility of concentration of power over opinion and the danger of misuse in order to gain unilateral influence over public opinion must, particularly with a medium as significant as broadcasting, be taken into account (cf. BVerwGE 39, 159 ; Bavarian Constitutional Court, VerfGH 30, 78 ). In view of these circumstances, the constitutional mandate of guaranteeing freedom of broadcasting would not be satisfied if only State interference were to be precluded and broadcasting left to the free play of market forces (cf. BVerfGE 31, 314 ); this is even less the case if one considers that when emerging developments prove to be faulty, they can only be rescinded -- if at all -- to a certain degree and only with considerable difficulty. Rather, it is the responsibility of the legislature to ensure that a overall pallet of programming comes into existence in which a forum is available for a variety of opinions, which is so essential for democracy. It is necessary to avert the danger that opinions in search of dissemination are shut out from the process of formation of public opinion and that those in possession of transmission frequencies and financial resources have an overwhelming influence on the formation of public opinion (cf. Münster Administrative Appeals Court, DVBl. 1977, p. 210). It is of course not possible to ensure this with absolute certainty; nevertheless, it must be at least sufficiently likely that this sort of balanced variety comes about within the statutorily structured broadcasting system.
The necessity of this is not obviated in view of the fact that the requirements of freedom of broadcasting may be deemed fulfilled at least by the existing public broadcasting companies, such that -- as argued by the Complainant in the proceedings below -- all relevant societal groups and intellectual directions have their say within the framework of public programming and subscribers are able to inform themselves comprehensively: Even if only isolated standpoints were to be given additional, unilateral coverage in private broadcasting, then this would disturb, if not destroy, the balance between societal groups with regard to their "having their say", a balance so essential for the entire spectrum of domestic programming available to the individual subscriber.
2. It is not necessary in the instant proceedings to deal definitively with the issue of which requirements are placed by the Basic Law on statutory regulation of private broadcasting. This especially applies to the question of whether the financing of private broadcasting is basically in need of regulation by law, for instance, due to the possible repercussions this might have on programming or on the situation of other media branches, particularly the press.
a) In any event, among the issues basically to be dealt with by the legislature is the decision on the basic structure to be given to the broadcasting order; the introduction of private broadcasting thus requires a statutory basis and a decision by Parliament. This also applies to model laws limited either as to time or location, since these have the same ties to basic rights as a definitive regulation. The legislature is, of course, entitled here to considerably greater discretion in shaping these model laws, because they serve the task of gaining experience (cf. BVerfGE 54, 173 , with further references).
b) The legislature may not, however, leave it rest at this basic decision. Additional statutory provisions are necessary that ensure within the framework of the established regulatory model that broadcasting will not be put at the mercy of one or several societal groups and that relevant forces are able to have their say in the overall pallet of programming.
In accordance with the Television Judgment (BVerfGE 12, 205 ), which held such a legislative decision to be consistent with the Constitution, the legislature may opt for an "internally pluralistic" structure among broadcasters, i.e., to organize them in such a way that the influence of the relevant forces is dealt with internally by organs of the respective broadcasters. In this case, such a structure must see to it that the relevant societal forces are correctly defined and balanced so as to pay basic regard to existing variety and that it is ensured that the organ in which these forces are represented is able to exercise influence effectively.
The legislature may, however, choose other structural forms instead, as long as it ensures with suitable safeguards that the overall offering of domestic programming also in actuality basically corresponds to the existing variety of opinion. If it opts to establish and maintain freedom of broadcasting by way of external ("externally pluralistic") variety, it may even here not dispense with regulations; the guarantee of freedom remains its responsibility (see supra 1 c). As long as a sufficient number of frequencies are not available, one possibility for carrying out this responsibility might lie in a structure in which several opinion disseminators could use the same frequency for limited periods.
c) Furthermore, the legislature is required to develop guiding principles that are binding on the contents of overall programming and that ensure a minimum of substantive balance, objectivity and mutual respect (BVerfGE 12, 205 ). With an "internally pluralistic" structure for broadcasters, this requirement applies to the overall pallet of programming offered by each individual broadcaster. With an "externally pluralistic" model, individual broadcasters are not obligated to present balanced programming; nevertheless, they remain committed to providing accurate, comprehensive and truthful information and to a minimum of mutual respect. In addition, all broadcasters are bound by the limits of Art. 5(2) GG. Account will particularly have to be made in the broadcasting laws with regard to the protection of youth.
d) The required statutory regulations in private broadcasting likewise include the establishment of limited State supervision, which is -- only -- to function in ensuring that the provisions enacted to guarantee freedom of broadcasting are observed (cf. BVerfGE 12, 205 ).
e) Finally, with any form of broadcasting's statutory structure, it is absolutely necessary to review in advance whether when private broadcasts commence or when additional broadcasters enter the market, the above-described requirements are satisfied. When the legislature decides in favor of an organization for broadcasting covering private broadcasting, it must create access rules that ensure proper review including rejection of an applicant if necessary and that provide for a fair procedure for the review and decision. Such a licensing procedure may, in addition to a review of general prerequisites, such as commercial soundness or reliability of the applicant, only serve to guarantee freedom of broadcasting, for which reason it is constitutionally required.
In the process, it is the responsibility of the legislature to determine itself the prerequisites for issuing or denying the license. By way of the parliamentary proviso (see supra 1 b), it is prohibited from transferring to the executive the right to decide on admission of private broadcasting. This proviso and the principle of separation of powers obligate it to delineate itself the legal sphere open to action by the State. The law must set up substantive rules with regard to the activities of the public administration and must not limit itself to establishing principles kept in general terms (BVerfGE 52, 1  -- Small Gardens). The same applies to a revocation of the license.
f) When available transmission resources do not permit all applicants to be able to transmit private broadcasts, the access rules must also provide for rules on the selection of applicants. This is required by the equality doctrine (Art. 3(1) GG).
The question of who is to receive one of the scarce resources for broadcast programming must therefore not be left to chance or the free play of market forces. It is also not enough when the decision is left to the unbridled discretion of the executive. This would not be compatible with the proviso of law (cf. BVerfGE 33, 303 [345 f.] -- Numerus clausus). Rather, the legislature itself must define the prerequisites under which access is to be granted or denied, and it must establish a fair procedure for deciding on this. The mandate of equal treatment can be fulfilled without great difficulty within the framework of a system that allows broadcasting times to be allocated or, if need be, proportionately reduced. If this is insufficient or if the legislature has opted for a system in which licenses are awarded to broadcasters for full-time programming only, it must lay down selection criteria that ensure all applicants an equal chance (cf. BVerfGE 33, 303 ); evaluation of these chances must be determined by criteria that are objectively suited to this procedure and that can be expected of the applicants (cf. BVerfGE 43, 291 [316 f.]).
The provisions under review fail in important respects to satisfy these constitutional requirements. The provisions in Section C, Titles I and II of the Act on the Transmission of Broadcasts in the Saarland fulfill the need arising from Art. 5(1) GG of defining by statute the basic structure of the broadcasting system; they create a statutory basis for the introduction of private broadcasting, establish binding principles (in § 46 a in conjunction with §§ 10-11) with regard to programming and provide (in §§ 41-42) for State supervision. However, they do not contain any rules consistent with the Constitution regarding access to transmission of private broadcasts in the German language, do not deal at all with the question of applicant selection, and in the provisions relating to the Advisory Committee, do not offer any guarantee that the societally relevant forces are able to have sufficient influence in the organs of the broadcasters and have their say in overall programming.
1. § 39 GVRS makes the granting of the license and the possible imposition of restrictions on this subject to the discretion of the state government, which the Act itself does not specifically limit; in para. 1, fifth sentence, it expressly bars a legal claim to the granting of a license. Thus, § 39 places the determination of the prerequisites, which establish whether a license is to be granted or denied, in the hands of the executive -- but to a degree no longer compatible with the proviso of law under Art. 5(1), second sentence, GG and with the principle of separation of powers.
§§ 40 and 46 GVRS set down "Special Conditions", the observance of which is to be reviewed by the state government prior to granting the license. It may thus be inferred that the license is to be denied when these conditions have not been fulfilled. On the other hand, however, the legislature has failed to provide for any rules whatsoever with regard to the question of what is to transpire when the applicant satisfies these conditions. In this case as well, the state government can deny the license, even for reasons that have nothing to do with the guaranteeing of freedom of broadcasting. The legislature has thus relinquished a decision on a point that is of essential importance for the realization of basic rights (BVerfGE 47, 46 ). The way in which the broadcasting system in the Saarland is to be structured is in effect not determined by the parliamentary legislature but rather by the state government. This conflicts with the constitutional requirement on the legislature that it itself determine the prerequisites for the granting or denial of the license and that it itself delineate the legal sphere open to action by the State (BVerfGE 52, 1 ).
2. Also in conflict with the Constitution is the absence of any regulation of the question of what is to transpire when more applicants seek a license than can be accommodated in view of the frequency situation. As explained above, a statutory rule is required here as well that guarantees to all applicants at least an equal chance. At the time the provisions under review here were enacted (1967), the question was not able to be ignored. Today as well, it is also not irrelevant, since the Saarland does not yet have a broadbased cable network, and in the area of traditional transmission technology, it presently cannot be expected that available frequencies will be increased to any appreciable extent. Accordingly, it may not be assumed -- at least for the present and the near future -- that all applicants will be able to be provided access to transmission of private broadcasting. For this reason, the legislature may not leave the decision on this to the unspecified discretion of the state government. The fact that only a few applicants will likely emerge could not make such a rule superfluous.
3. Finally, the rules dealing with the composition and powers of the Advisory Committee do not sufficiently guarantee that the transmission of private broadcasts in the Saarland will satisfy the requirements of freedom of broadcasting (cf. Fuhr/Konrad, UFITA 50 , pp. 562 [564 ff.]; Schmitz, DÖV 1968, pp. 685 ff.; Stern/Bethge, Öffentlich-rechtlicher und privatrechtlicher Rundfunk, 1971, pp. 67 ff.).
When the Saarland Act seeks to guarantee freedom of broadcasting by establishing an "internally pluralistic" structure for the individual broadcasters similar to that in place for the public broadcasting companies, then this is one way in which the mandate set up by the Constitution can be satisfied (cf. BVerfGE 12, 205 ). But with this organizational form, however, it is of utmost importance that all societally relevant forces are represented in that particular organ which can give expression to their influence and, moreover, that this influence is effective; in this manner, it can be assured -- in accordance with the idea behind this model -- that broadcasting will not be made to serve only one particular direction or interest (above all, the entrepreneurial interest of the company itself) at the expense of those concerns protected by freedom of broadcasting. For this reason, strict requirements are to be placed here on the statutory regulation of private broadcasting.
a) These requirements are not met by the rules in the Act regarding the composition of the Advisory Committee. According to § 46c, first sentence, the Committee is composed of a maximum of 13 members. In addition, reference is made in the second sentence to the provisions applying to the Broadcasting Council of the Saarland Public Broadcasting Company. Thereafter, the only stipulation made by the statute is that one member each on the Committee is to come from the state government, the Catholic and Evangelical Churches and the fractions of the state Parliament. Thus, alongside the governmental representatives, only two "relevant societal groups" are defined by the Act itself. The remaining members of the Committee and their deputies are to be elected by the state Parliament upon proposal by the Committee for Cultural Policy and Youth Matters, whereby large groupings within public life, in particular, from the cultural, social and economic areas, are to "be heard" (§ 46c, second sentence, in conjunction with § 16(4) GVRS). This type of regulation is not capable of ensuring with the necessary certainty that pertinent societal forces are given adequate consideration; the mere obligation to hear large groupings within public life -- these not being described in any detail -- is no substitute for specific criteria. When one also considers that the designated number of 13 Committee members can be reduced (§ 46c, first sentence, GVRS), the statutory regulation regarding the composition of the Committee reaches a level of imprecision at which it no longer appears sufficiently certain that the Committee, which is to represent the general public vis-à-vis the broadcaster (§ 46b(1), first sentence, GVRS), also actually does so.
b) Furthermore, there are lacking statutory provisions ensuring that the Committee has the requisite effective influence. In contrast to the corresponding organs of the public broadcasting companies, the Committee has no power to exercise influence of any weight or conduct effective supervision. Under § 46b(1), fourth to seventh sentences, GVRS, the Committee monitors the observance of the statutory provisions in the transmission of broadcasts and the observance of the provisions of the company charter pertaining to it. It notifies the broadcaster and the Supervisory Authority of relevant violations. It discusses all issues of fundamental importance for the broadcaster. It advises the broadcaster with regard to programming. In all respects, the Committee is limited to advising, discussing and recommending. Its orders do not, apart from the case of § 46b(4) GVRS, have binding force; moreover, there is no possibility for sanctions. In view of these circumstances, it is not possible -- as correctly pointed out in the Administrative Court's submission order -- to speak of effective influence. The Committee's position is too weak for it to be able to advocate effectively the interests of the general public when faced with entrepreneurial or other company interests. The guarantee of freedom of broadcasting through an "internally pluralistic" structure of the broadcaster thus lacks a decisive element, one to be created by law and then made effective.
c) The above-noted shortcomings are not compensated for by the fact that, as asserted by the Complainant in the proceedings below, private media companies are, on account of the sought-for advertising revenues, dependent on listener or viewer ratings that are as high as possible, such that they necessarily must offer programming that does not give coverage to only one particular group. Expectations of this sort are not adequately certain. Similarly, the fact that the Act stipulates that broadcasters are to be organized as stock corporations cannot compensate for the deficiencies it displays. This organizational form basically covers only the commercial side of the private broadcaster and is hardly suited to advocating effectively the interests of the general public. Although the supervisory board would seem to be the most fitting organ for this task, the Act does not provide it with any such powers; moreover, it is set up according to aspects other than representation of the relevant societal forces. Even though under § 46 GVRS, the supervisory board must include two members of the Advisory Committee, who are bound by the directives of the Committee (§ 46e(6) GVRS), this does little to change either the composition of the supervisory board, which is not suited to guaranteeing freedom of broadcasting, or its responsibilities; in addition, when capital stock is valued at more than DM 3 million, the charter can increase the number of members on the supervisory board (§ 95 of the Corporations Act), such that the members belonging to the Advisory Committee can be pushed into the minority. Thus, here as well, the influence of the relevant societal forces is not ensured by statute.
In addition, § 40(2) GVRS, which seeks to make the transfer of shares subject to the approval of the supervisory board or the stockholders' meeting and to prohibit more than 50 % of the shares from coming into the hands of one person, it is not capable of compensating for the above-described shortcomings. Even though this might bar one shareholder or group of shareholders from exercising an overwhelming influence, it does not necessarily follow that the various groups of shareholders are identical with the relevant societal forces, whose influence is instead to be ensured. As correctly emphasized by the Administrative Court's submission order, the validity of the provision turns on the abstract statutory rule, not on the composition of shareholders in a given case.
Finally, these shortcomings are also not compensated for by way of the provisions dealing with the possibilities for the state executive to exercise influence, which serve the aim of guaranteeing the development and cultivation of freedom of broadcasting. Here as well, the standpoint taken in the submission order is justified.
This initially applies to the power to impose restrictions and to revoke the license (§ 39(1), third sentence, § 45 GVRS). Both are the concern of the state government. The imposition of restrictions is subject to the latter's discretion. Although for revocation of the license, statutory conditions are set forth in § 45 GVRS, it is nevertheless also within the discretion of the state government whether the license is to be revoked when these conditions are present. In this respect as well, safeguards to guarantee freedom of broadcasting are not adequately defined by statute. Apart from this, loss of license if the ultima ratio of this guarantee (cf., in particular, § 45, Nos. 5 and 7 GVRS). Thus, the possibility of revocation of license is not capable of replacing constant, effective supervision and exercising of influence by societal forces.
The same applies to State supervision (§§ 41-42 GVRS). Internal societal control via the required pluralistic autonomy of broadcasting, on the one hand, and State supervision as outside control, on the other, are no substitutes for one another. Moreover, supervision by the governmental executive can only be deemed an additional -- and limited -- means of assurance, since freedom of broadcasting means not only freedom from unilateral societal influence but also (and primarily) freedom from State influence (BVerfGE 12, 205 ). In addition, State supervision as legal supervision is only directed at the observance of legal provisions. If these are lacking, then this supervision misses the mark. Thus, the establishment of State supervision is also incapable of correcting the abovedescribed shortcomings.
In their entirety, these shortcomings thus result in the unconstitutionality of the provisions dealing with the Advisory Committee set down in §§ 46, 46b(1) and 46c, first and second sentences, GVRS.
4. It may be left aside whether the provisions of Section C, Titles I and II of the ACT are also objectionable because they do not provide statutory rules with regard to the financing of private broadcast transmissions (cf. supra I 2): Regardless of how the issue might be resolved, these provisions are, insofar as they regulate the transmission of private broadcasts in the German language, to be declared void in their entirety (§ 78, first sentence, BVerfGG).
Of course, when one or several provisions of a law are declared void, this does not necessarily mean that the law as a whole is void (BVerfGE 8, 274 ; consistent holdings: cf. also BVerfGE 47, 253 ). However, the situation is different when, if viewed objectively, the remaining provisions of the law that are compatible with the Constitution have no independent meaning. A law is thus void in its entirety when the unconstitutional provisions are a part of an overall regulation that would lose its sense and justification if one of its component parts were to be removed, i.e., when the void provisions are so intertwined with the remaining provisions that they form an inseparable unit that cannot be divided into its individual component parts (BVerfGE, above).
This is precisely the case here. That which is lacking or insufficiently regulated in the provisions under review is essential; that which meets the constitutional requirements does not alone have an independent meaning. In the absence of a rule regarding access and selection of applicants that is consistent with the Constitution, and removing the unconstitutional provisions dealing with the Advisory Committee, the Act is simply a torso that alone cannot be effective in regulating the transmission of private broadcasts in the Saarland. The regulation of the transmission of private broadcasts in the German language by the Saarland Act cannot be separated into individual component parts without sacrificing their sense, their justification and, above all, their capacity to fulfill their mandate. It is therefore void in its entirety.
Judges: Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner.
This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.