1. Constitutional review pursuant to abstract norm control proceedings (Abstract Judicial Review) also covers «treaty laws» for treaties between Germany's states.
2. A federal organ is also deemed to have «not applied» state law within the meaning of § 76, No. 2, BVerfGG when it «disregarded» this law.
3. a) The postal and telecommunications system within the meaning of art. 73, No. 7, Basic Law only covers -- apart from the reception of broadcasts -- the transmission-related area of broadcasting, excluding so-called studio technology.
b) Art. 73, No. 7, Basic Law does not empower the Federation to regulate the organization of broadcasting and that of broadcasters.
4. The Federation's legislative competence with regard to telecommunications system (art. 73, No. 7, Basic Law) also extends to regulations that reserve for the Federation the exclusive right to establish and operate transmission facilities for the purpose of broadcasting.
5. In accordance with the system of the Basic Law, the Federation's legislative competence describes the outermost boundary of its administrative powers. The «Federal postal service» (3 Bundespost) in art. 87(1) Basic Law therefore cannot comprise more than the «postal and telecommunications system» in art. 73, No. 7, Basic Law.
6. In awarding the right to establish or operate broadcasting facilities (§ 2 of the Telecommunications Facilities Act) and in concluding contracts dealing with the use of such facilities, the Bundespost may only regulate transmission aspects. Any «terms» going beyond this area are impermissible.
7. a) In accordance with the development of German law, broadcasting is a public function. When the State exercises this function in some form (including in those cases in which it makes use of forms of private law), it becomes a «State function» within the meaning of art. 30 Basic Law.
b) Broadcasting by the Federation cannot be justified under art. 30 in conjunction with arts. 83 ff. Basic Law with the argument that broadcasting is a «supra-regional function» or that the Basic Law permits the broadcasting by the Federation of such programs that are to serve national representation within the country and to assist in safeguarding "continuity of tradition". By the very nature of the matter, the Federation does not have any competence over this.
8. a) Art. 30 Basic Law applies to the discharge of public functions both pursuant to law and outside the law.
b) Section VIII of the Basic Law «provides otherwise» within the meaning of art. 30 Basic Law both for administration pursuant to law and that outside the law.
9. The procedure and style of the negotiations that become necessary under the Constitution between the Federation and its component parts and between the states are also subject to the mandate that the parties act for the benefit of the Federation.
10. Art. 5 Basic Law calls for laws providing that broadcasters be organized in such a way that all pertinent forces are able to have an influence in their organs and to have their say in overall programming; such laws are also to establish binding guidelines for the content of overall programming that guarantee a minimum of substantive balance, objectivity and mutual respect.
Judgment of the Second Panel of 28 February 1961 on the basis of the oral hearing of 28, 29 and 30 November 1960 -- 2 BvG 1, 2/60 --
in the proceedings relating to the constitutional review of § 3 of the Interstate Treaty on the Norddeutschen Rundfunk of 16 February 1955,
Applicant: the Senate of the Free and Hanseatic City of Hamburg, represented by the President, agent ...., and in the constitutional dispute on the question of whether by the establishment of Deutschland-Fernsehen-GmbH and by other actions in the area of television, the Federal Government violated art. 5 Basic Law and art. 30 in conjunction with art. 87(3) Basic Law as well as the duty to act for the benefit of the Federation.
Applicant: for the Free and Hanseatic City of Hamburg, the Senate, represented by the President, agent ...; for the State of Hesse, the State Government, represented by the Minister-President, agents ...; Opponent: for the Federal Republic of Germany, the Federal Government, represented by the Federal Minister of the Interior, agents ...; Other Participants: for the State of Lower Saxony, the State Government, represented by the Minister-President, agents ...; for the Free and Hanseatic City of Bremen, the Senate, represented by the President, agent .
1. The Hamburg Act relating to the Interstate Treaty (Staatsvertrag) on the Norddeutschen Rundfunk (North German Public Broadcasting Company; NDR) is, insofar as it refers to § 3(1) of the Interstate Treaty, incompatible with article 73, No. 7, of the Basic Law and therefore null and void to the extent that § 3(1) of the Interstate Treaty reserves for Norddeutschen Rundfunk the exclusive right to establish and operate transmission facilities for radio and television.
In all other respects, the Act is compatible with the Basic Law to the extent that it refers to § 3(1) of the Interstate Treaty.
2. By way of the founding of the Deutschland-Fernsehen-GmbH (Germany Television Corporation), the Federation violated article 30 in conjunction with Section VIII of the Basic Law, as well as the principle of action for the benefit of the Federation and article 5 of the Basic Law.
EXTRACT FROM GROUNDS:
. . . (elaboration by the Court of the history of the mass communications medium «broadcasting» in Germany from 1923 to 1945)
1. Following the end of World War II, the operation of broadcasting facilities by German authorities was initially prohibited. The confiscated radio stations were operated by the Occupying Powers, which gradually returned broadcasting to German control. The Western Occupying Powers pursued the objective of eliminating all forms of State influence over broadcasting. By way of ordinances issued by the military governments or through laws of the states, whose contents were fundamentally influenced by the Occupying Powers, public broadcasting companies were created in the three Western zones of occupation. These received the right of self-administration and in some areas were subject to precisely described legal supervsion. Programming principles as well as provisions on their functions, organization and business management served the goal of ensuring the companies' independence from the State and their political neutrality. The same applies to the broadcasting companies later established without the influence of the Occupying Powers by laws or interstate treaties.
In order to make the broadcasting companies completely independent of the postal services, the Occupying Powers transferred to the newly created broadcasting companies all broadcasting property possessed by the Reich postal services and the Reich broadcasting corporation. The broadcasting companies became owners of all studio and transmission facilities. The powers of the postal services were cut back dramatically. Programming as well as studio and transmission technology were the province of the broadcasting companies. This is still the case today.
2. At present, there are nine public broadcasting companies in the Federal Republic of Germany. The companies in the former US zone of occupation (Bayerischer Rundfunk [Bavarian Public Broadcasting Company], Hessischer Rundfunk [Hesse], Süddeutscher Rundfunk [South German], and Radio Bremen) were established by way of state laws, and those in the former French and British zones (Südwestfunk [Southwest] and Nordwestdeutscher Rundfunk [Northwest German]), by ordinances of the military government. The occupation-law basis for Südwestfunk was essentially replaced in 1952 by an interstate treaty concluded by the states of Baden, Rhineland-Palatinate and Württemberg-Hohenzollern. Nordwestdeutscher Rundfunk was dissolved in 1955. It was replaced in North Rhine-Westphalia by Westdeutscher Rundfunk (West German Public Broadcasting Company), established in Cologne as a result of a state law, and in the states of Lower Saxony, the Free and Hanseatic City of Hamburg and Schleswig-Holstein, by Norddeutscher Rundfunk, created by an interstate treaty of 16 February 1955. The Hamburg City Council approved the ratification of this treaty by way of the Act of 10 June 1955 relating to the Interstate Treaty on the Norddeutschen Rundfunk (GVBl. I, p. 197).
§ 3 of the Interstate Treaty reads:(1) The function of NDR shall be the dissemination for the general public of news and presentations in word, sound and image. NDR shall be reserved the exclusive right and the duty to establish and to operate in the States of Lower Saxony, Schleswig-Holstein and the Free and Hanseatic City of Hamburg (Transmission Territory) the radio broadcasting and television broadcasting facilities required for carrying out this function, as well as to supply the facilities for wired radio.
(2) NDR shall ensure that its technical facilities offer provision of the same standard throughout its Transmission Territory.
§ 2 of the Act on the Hessische Rundfunk of 2 October 1948 (GVBl., p. 123) states:
The function of the Hessischer Rundfunk shall be the dissemination of news and presentations of an educational, informational and entertainment nature. To this end, it shall acquire and operate broadcasting transmission facilities.
The Saarländischer Rundfunk (Saarland Public Broadcasting Company) and the Sender Freies Berlin (Radio Free Berlin) were established by state laws, likewise as independent public broadcasting companies.
3. The public broadcasting companies have united to form the «Working Group of Public Broadcasting Companies in the Federal Republic of Germany» (Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland; ARD). Their cooperative efforts in the area of television are based on the «Interstate Television Treaty» concluded on 27 March 1953, which is currently in force in the version of 24 May 1956. The «Agreement regarding the Coordination of the First Television Channel», which was concluded by the states on 17 April 1959, is intended to provide the companies' joint programming activities with a legal foundation.
Following the entry into force of the Basic Law, a number of efforts were made to reorganize the broadcasting system, some by way of federal legislation, others by way of agreements between the states or between the states and the Federation.
1. The efforts to regulate broadcasting issues with federal law initially failed to meet with success (cf. the draft on an Act regarding the Performance of Common Functions in the Area of Broadcasting, BT I/1949 Drucks. No. 4198). Although agreement was finally reached on the Act regarding the Establishment of Federal Public Broadcasting Companies (Gesetz über die Errichtung von Rundfunkanstalten des Bundesrechts) of 29 November 1960 (BGBl. I, p. 862), it is limited to the establishment and regulation of the legal affairs of two public companies named «Deutsche Welle», which is to transmit broadcast programming abroad, and «Deutschlandfunk», with programming for Germany and European countries. The «General Rules for Federal Public Broadcasting Companies» (§§ 23-32) contain provisions regarding the way in which programs are to be structured, news reporting, right of reply, right of official announcements, claim of political parties to broadcasting time, responsibility for programs, duty of information, protection of juveniles and preservation of evidence.
The Government's draft of this Act (BT III/1957 Drucks. 1434) also provided for the establishment of an additional public broadcasting company named «Deutschland-Fernsehen» (Germany Television), whose programs were to be broadcast on a second channel and provide «television viewers in all of Germany and in Europe with a comprehensive picture of Germany».
The company was primarily to transfer the responsibility for broadcasting the programs to private-law corporations (§ 22 of the draft Act). The channel's programming was to be transmitted by broadcasters established by the Bundespost on the basis of an order by the Federal Government, including in the states of Hamburg and Hesse; these broadcasters are also to be operated by the Bundespost (see the reasoning on § 60 of the draft Act, as well as Bulletin No. 145 of the Press and Information Office of the Federal Government of 12 August 1959, p. 1473, and No. 151 of 16 August 1960, p. 1498).
In addition, the draft Act contains provisions on broadcasting user fees and sought to rescind provisions enacted pursuant to occupation law and preconstitutional state law. The legal affairs of the existing broadcasting companies were to be determined, apart from a few exceptions, by state law (§ 49 of the draft Act). The provisions binding on all broadcasting companies were also to include the «General Provisions» (§§ 1-11 of the draft Act). These essentially correspond to the «General Provisions» now applicable only to the federal public broadcasting companies (§§ 23-32 of the Act).
2. The Federation and the states also attempted to structure the broadcasting system by way of treaty. In 1955 a commmission composed of representatives from the Federation and the states prepared drafts for a General Broadcasting Treaty and for three additional treaties (Short-Wave, Long-Wave and Television Treaties). However, the drafts failed to gain the consent of the Federal Government, and the treaties were not concluded.
This prompted the Federal Government in February 1958 to give consideration to federal regulation, whose contents were repeatedly discussed by representatives from the states. In January 1960, the heads of the state governments set up a Commission that was to continue the negotiations with the Federal Govern-
ment. The Commission included the Rhineland-Palatinate Minister-President Altmeier and his colleague from Schleswig-Holstein von Hassel (both from the conservative Christian-Democratic Party), the Hessian Minister-President Zinn and Berlin Senator Klein (both from the socialist Social-Democratic Party). However, negotiations between this Commission and the Federal Government did not ensue. But beginning in July 1959, talks took place between the Minister-Presidents belonging to the Christian-Democratic Party and its sister Christian-Socialist Party and members of the Federal Government, with Bundestag representatives of these parties also being consulted on occasion. Subject matter of the negotiations was, in particular, the question of whether the operation of a second television channel should be regulated by law, interstate treaty or administrative agreement.
The plan to have the Federation and the states form a corporation with limited liability in charge of the second television channel was first discussed on 8 July 1960 in a conference between the Federal Chancellor and several Christian-Democratic and Christian-Socialist Minister-Presidents. The contents of the articles of incorporation were the subject of a further conference on 15 July 1960, which, in addition to members of the Federal Government, once again only included Minister-Presidents, Ministers and Bundestag representatives of the two, above-mentioned parties. Proposed date for the signing of the articles of incorporation was 25 July 1960.
The heads of state government belonging to the Social-Democratic Party were notified by Minister-President Altmeier of the intended formation of a corporation with limited liability by way of letter of 16 July 1960, which invited them to attend a conference on 22 July 1960 in order to discuss the results of the negotiations from July 8 and 15, 1960.
The heads of state government did not approve the proposal without reservation but rather made counter-proposals, which were forwarded by Minister-President Altmeier to the Federal Chancellor on the same day. The Federal Chancellor responded with letter of 23 July 1960 that he was unwilling to approve a further postponement of the proposed date for founding the corporation; the articles of incorporation, he said, would nevertheless be drafted in such a way as to enable the states to join at any time.
3. a) On 25 July 1960, the Deutschland-Fernsehen-GmbH (Germany Television Corporation) was founded with headquarters in Cologne by the Federal Republic of Germany, represented by the Federal Chancellor, and by Federal Minister Schäffer. The corporation's nominal capital amounted to DM 23,000, of which DM 12,000 were supplied by the Federal Republic of Germany, and DM 11,000, by Federal Minister Schäffer, who was to «safeguard the interests of the States of the Federal Republic of Germany until such time as they join the corporation» (§ 6 of the Corporation's Charter). Federal Minister Schäffer was «obligated to assign to every State that concludes an administrative agreement with the Federal Republic of Germany on participation in the Corporation a partial share with a nominal value of DM 1,000» (§ 7 of the Charter).
After it became clear that no state was willing to participate in the Corporation, Federal Minister Schäffer transferred his shares to the Federal Republic of Germany on 25 August 1960, which is now the holder of all shares in the Corporation. At the same time, the Charter was amended. § 7 of the Charter continues to provide for the assignment of partial shares to the states that conclude administrative agreements with the Federal Republic of Germany on participation in the Corporation. Such agreements have, however, not been concluded thus far.
b) The Corporation's function is «the transmission of broadcast television programs that are to provide viewers in all of Germany and abroad with a comprehensive picture of Germany» (§ 2 of the Charter). The Corporation bears sole responsibility for all programming; it is either to produce this itself or have it produced by third parties at its request and under its responsibility (§ 4 of the Charter). The Charter contains «Programming Principles»; the provisions for the companies «Deutsche Welle» and «Deutschland-Funk» are «to be applied mutatis mutandis». Advertisements may not comprise more than 10 % of overall programming (§ 3 of the Charter).
c) The Corporation's organs include the Shareholders' Meeting, the Supervisory Council and the Director (§ 8 of the Charter). Under § 10 of the amended Charter, the Supervisory Council is composed of at least 10 and at most 15 members to be elected by the Shareholders' Meeting. Up to 10 members are nominated by the Federal Government and 1 member each by the Evangelical Church, the Catholic Church, the Central Council of Jews in Germany, the employers' associations and the trade unions. «The Shareholders are obligated to elect the persons nominated» (§ 10 of the Charter). The Supervisory Council appoints the Director and monitors his management. It advises him in programming issues, provides him with guidelines for this and monitors their observance. The approval of the Supervisory Council is necessary for certain transactions (§ 11 of the Charter). The Director, who bears the title Intendant, represents the Corporation judicially and extrajudicially. He «manages the business of the Corporation, including programming» (§ 15 of the Charter).
The Free and Hanseatic City of Hamburg and the State of Hesse are of the view that the Federation has violated their constitutional rights. Pursuant to art. 93(1), No. 3, Basic Law and §§ 13, No. 7, and 68 ff. BVerfGG, the Free and Hanseatic City of Hamburg has applied for the finding that:
"The Federal Government violates the rights to which the Free and Hanseatic City of Hamburg is entitled under art. 30 Basic Law, in that it
(a) founded on 25 July 1960 a Deutschland-Fernsehen-GmbH for the procurement and production of television programming, and
(b) is preparing to broadcast programs itself on frequencies available for television broadcasting or to award the right to use such frequencies to programmers other than the public broadcasting companies of the States."
The State of Hesse has applied for a determination that:
"The Federal Government contravenes arts. 5 and 30 Basic Law in conjunction with art. 87(3) Basic Law, as well as duty flowing from the federalist structure of the Basic Law to act for the benefit of the states, in that it founded on 25 July 1960 a Corporation named "Deutschland-Fernsehen-Corporation" with limited liability and took action to enable this Corporation to broadcast television programs.
Pursuant to art. 93(1), No. 2, Basic Law and §§ 13, No. 6, and 76 ff. BVerfGG, the Senate of the Free and Hanseatic City of Hamburg further has sought the following determination:
"§ 3 of the Interstate Treaty on the Norddeutschen Rundfunk of 16 February 1955 is compatible with article 73, No. 7, Basic Law."
. . . (elaboration of the reasoning behind the applications)
In support of its position, the Senate of the Free and Hanseatic City of Hamburg has submitted expert opinions by Professors Krüger, Mallmann, Maunz and Ridder.
The Federal Government has applied that the applications be dismissed. . . . (elaboration of the reasoning)
The Government of the State of Lower Saxony and the Senate of the Free and Hanseatic City of Bremen have joined the Free and Hanseatic City of Hamburg in the Federation-state conflict.
. . .
The applications fall within the jurisdiction of the Second Senate; they are admissible. . . . (detailed elaboration by the Court)
. . .
§ 3(1) of the Interstate Treaty reserves for the Norddeutschen Rundfunk the exclusive right to disseminate for the general public news and presentations in word, sound and image in the States of Lower Saxony, Schleswig-Holstein and the Free and Hanseatic City of Hamburg (Transmission Territory), i.e., to broadcast programs (monopoly on the broadcasting of programs). The provision further provides the Norddeutschen Rundfunk the exclusive right to establish and operate in its Transmission Territory the radio broadcasting and television broadcasting facilities required for broadcasting programs (monopoly on the establishment and operation of transmission facilities).
The Hamburg Act relating to the Interstate Treaty on the Norddeutschen Rundfunk is, insofar as it refers to § 3(1) of the Interstate Treaty, incompatible with the Basic Law and therefore null and void to the extent that the provision provides the Norddeutschen Rundfunk with a monopoly on the establishment and operation of transmission facilities. In all other respects, the provision is compatible with the Basic Law.
1. In the view of the Federal Government, § 3(1) of the Interstate Treaty is null and void in its entirety. The provision is alleged to be incompatible with the exclusive legislative competence of the Federation with regard to regulation of the telecommunications system (art. 73, No. 7, Basic Law).
The Federal Government asserts that the term «postal and telecommunications system» is the result of historical developments. It is said to correspond to that of the «postal and telegraph system» in Art. 6, No. 7, and Art. 88(1) of the Weimar Constitution, covering radio and -- since its origins -- also broadcasting. During the period of the Reich postal services, it attached to the «licenses» issued to programming companies for the use of its radio transmission facilities for the purposes of entertainment broadcasting «extensive terms designed to ensure political impartiality in the transmission program and organizational neutrality of the transmission companies». It is alleged that the wording of the licenses unambiguously reveals «that the Reich postal services controlled both the technical and the organizational side» and «laid claim to all issues concerning the broadcasting area by virtue of its sovereignty in the field of telegraphy (radio sovereignty)» (Scheuner, Expert Opinion, pp. 45 f.). The Act on Telecommunications Facilities of 1928 is said to have confirmed this legal situation and included in the statutory regulation the Reich's ability to exercise influence over broadcasting (Scheuner, Expert Opinion, p. 46).
The Federal Government further asserts that the term «telecommunications system» is also unable, insofar as it covers broadcasting, to be divided into a technical, an organization and a programming category, since, from the standpoint of the legislature, broadcasting constitutes an unified whole. It is alleged that sensible regulation of licensing cannot be implemented without imposing terms regarding the organization and programming of broadcasting.
Thus, in the view of the Federal Government, the legislative powers under art. 73, No. 7, Basic Law cover broadcasting as a whole. For this reason, the Federation is said also to be empowered to issue statutory rules pursuant to the guiding principles contained in art. 5 Basic Law for ensuring freedom of broadcasting. The granting of a monopoly to the Norddeutschen Rundfunk for the broadcasting of programs is therefore alleged to conflict with art. 5 Basic Law.
2. The regulation made by § 3(1) of the Interstate Treaty for the benefit of the Norddeutschen Rundfunk would be incompatible in its entirety with art. 73, No. 7, Basic Law if the term «telecommunications system» were to be understood in such a comprehensive manner as asserted by the Federal Government. Not only the exclusive right reserved for the Norddeutschen Rundfunk by § 3(1) of the Interstate Treaty to establish and operate transmission facilities but also its monopoly on the broadcasting of programs falls in that area that, in the view of the Federal Government, is subject to exclusive statutory regulation by the Federation pursuant to art. 73, No. 7, Basic Law.
1. The interpretation given by the Federal Government to art. 73, No. 7, Basic Law is incorrect. The «postal and telecommunications system» covers only the transmission-related area of broadcasting, excluding so-called studio technology, but not broadcasting as a whole. Art. 73, No. 7, Basic Law in particular does not empower the Federation to regulate the organization of broadcasting and the internal organization of the broadcasters or to enact rules relating to programs. The enacting of statutes called for by art. 5 Basic Law in order to give shape to the guiding principles it contains to ensure freedom of broadcasting falls, from both the standpoint of substantive law and from an organizational perspective (see infra E III), within the legislative competence of the states and only within that of the Federation to the extent that it might in exceptional cases have the authority to broadcast programs of a special nature (see infra III 2 and E I 5).
2. a) Under art. 73, No. 7, Basic Law, the Federation has exclusive legislative competence for the «postal and telecommunications system». Broadcasting could only be attributed to the telecommunications system within the meaning of this provision. The wording of art. 73, No. 7, Basic Law can be traced back to older formulations, which assigned to the postal services, in addition to their traditional functions, the telegraph system (cf. §§ 41 ff. of the Reich Constitution of 1849; Art. 4, No. 10, of the Constitution of the North German Alliance of 1867 and the Reich Constitution of 1871; Art. 6, No. 7, of the Weimar Constitution). In other words, by «postal system» in art. 73, No. 7, Basic Law is meant the «traditional» service branches of the postal services in contrast to the «new» field of the «telecommunications system». Both of these are a part of the «Bundespost» within the meaning of art. 87(1) Basic Law.
b) Broadcasting (here and in the following, radio broadcasting and television broadcasting) makes use, for the wireless dissemination of programming, of electric waves that are sent out by transmitters. These broadcasting transmitters are radio facilities and thus telecommunications facilities (§ 1 of the Telecommunications Facilities Act [Fernmeldeanlagengesetz; FAG]); they are a part of the telecommunications system within the meaning of art. 73, No. 7, Basic Law.
Under an interpretation following the ordinary meaning of the words and common usage of language, the telecommunications system only comprises the technical steps in the transmission of broadcast presentations. Telecommunications system is a technical term oriented according to the process of disseminating signals. The telecommunications system employs telecommunications facilities, i.e., technical equipment, with the aid of which signals are sent or conveyed «into the distance». This is confirmed by the Act on Telecommunications Facilities of 1928, whose provisions are limited, to the extent applicable here, by their meaning and their wording to regulations regarding the establishment and operation of radio facilities, i.e., to the regulation of technical processes. The medium of mass communications «broadcasting», whose political and cultural significance can hardly be overestimated, is not a part but rather a «user» of the equipment of the telecommunications system (cf. Moser, DÖV 1954, 389 ; Lademann, JIR 8 [1957/1958] p. 307 ; cf. also Haenel, Deutsches Staatsrecht, 1892, vol. 1, p. 415). The technical aspects of telecommunications may very well have been of predominant significance in the early days of broadcasting and have marked its development. However, viewing broadcasting as a whole, technical telecommunications equipment has for decades only exercised minor, support functions.
c) If, in accordance with the general usage of language, the telecommunications system only covers the technical processes serving to disseminate signals, then it follows that so-called studio technology does not belong to the telecommunications system. The telecommunications system first begins with the conveyance of transmittable sound and image signals by the broadcasting studio to one or several transmitters (conveyance by cables or by radio waves); it then also covers the sending out of the program and the conceivable, related technical processes up to reception of the program.
Within the meaning of art. 73, No. 7, Basic Law, the telecommunications system comprises the technical requirements whose regulation is indispensible for an orderly running of the operations of the broadcasters and the reception of their programs. The transmitters must be assigned specific frequencies that are coordinated with those of other transmitters. In order to avoid overlapping and disturbances, the location and transmission power of the transmitters must be fixed according to radio-technical aspects. The adherence to frequencies and transmission power must be supervised. Care must be taken that the sending out and reception of programs are not disturbed by other telecommunications facilities and electrical equipment, and that they in turn do not disturb general radio traffic. The same applies to the cables and radio traffic through which the sound and image signals are conveyed from the studio to the transmitter.
These things are a part of the telecommunications system. Insofar as they can be made subject to statutory rules, then only the Federation may enact the regulations.
3. It also follows from the relationship of art. 73, No. 7, Basic Law to other provisions of the Basic Law that the telecommunications system only comprises the transmission technology of broadcasting.
a) Art. 5(1), second sentence, Basic Law uses the term «broadcasting», and by this it means broadcasting as an institution. Although this does not rule out that other provisions of the Basic Law regulate sub-areas of broadcasting under other, more specific designations, the mention of «broadcasting» in art. 5(1), second sentence, Basic Law does not permit the assumption that the term «telecommunications system» covers broadcasting as a whole. If only sub-areas of broadcasting can be meant by the «telecommunications system», then this can only involve those areas that serve the conveyance of presentations, i.e., transmission technology.
As a medium of mass communications, broadcasting belongs in the neighborhood of press and film. Art. 5(1), second sentence, Basic Law refers to all three media in one sentence. The Federation's legislative competence is expressly provided only for the general legal affairs of press and film (art. 75, No. 2, Basic Law). Broadcasting is not mentioned in art. 75, No. 2, Basic Law. An interpretation paying regard to the interrelationship of the provisions of the Basic Law may therefore not assume that the Federation in entitled to exclusive legislative competence for broadcasting as a whole while it may enact only framework provisions dealing with the general legal affairs of the press and film.
b) With regard to the structure of legislative competence of the Federation and the states, the Basic Law operates on the principle that the states first have competence (BVerfGE 10, 89 ). The Federation only has legislative competence to the extent that the Basic Law endows it with such (art. 70(1) Basic Law). The Federation's legislative powers may therefore normally only be supported by an express authorization by the Basic Law. In cases of doubt regarding the Federation's jurisdiction, there is no assumption that argues in favor of federal competence. Rather, the systematic of the Basic Law calls for a strict interpretation of arts. 73 ff. Basic Law.
In addition, broadcasting is in any event also a cultural phenomenon. To the extent that cultural matters can be administered and regulated whatsoever by the State (cf. BVerfGE 10, 20 [36 f.]), they nevertheless fall, in accordance with the Basic Law's fundamental decision (arts. 30, 70 ff. and 83 ff. Basic Law), in the area of the states (cf. BVerfGE 6, 309 ) when special provisions of the Basic Law do not provide restrictions or exceptions in favor of the Federation. This fundamental decision by the Constitution, which is not least a decision in favor of the federalist structure of the State in the interest of effective separation of powers, forbids especially in the area of cultural matters the assumption that the Federation has jurisdiction without a sufficiently clear, contrary rule of exception. The latter is lacking here.
c) Art. 87(1) Basic Law stipulates that the Bundespost is to be managed as direct federal administration. This does not permit any inferences as to the extent of the Federation's legislative competence. It conforms to a principle of German constitutional law that federal competence to legislate extends farther than that to administer (cf. Scheuner, Expert Opinion, p. 48). In accordance with the systematic of the Basic Law, the Federation's legislative competence traces the outermost boundary of its administrative powers (cf. Krüger, Der Rundfunk im Verfassungsgefüge und in der Verwaltungsordnung von Bund und Ländern, 1960, p. 78; Zeidler, DVBl. 1960, 573 [579 f.]). But this means that the Federation's administrative competences follow its legislative competences and not the reverse. No conclusions may therefore be drawn from the alleged powers of the Bundespost under art. 87(1) Basic Law as to the extent of the Federation's legislative competence. Moreover, the «postal and telecommunications system» in art. 73, No. 7, Basic Law and the «Bundespost» in art. 87(1) Basic Law mean the same area. The extent of the area «Bundespost» results from what is to be understood by «postal and telecommunications system». It is also incorrect that broadcasting is considered a matter of the Bundespost. The Federal Government has dictated that broadcasting matters are, apart from technical issues, not to be dealt with offically by the Federal Ministry for the Postal and Telecommunications System but rather by the Federal Ministry of the Interior. It therefore acknowledges that in its view as well, this does not involve matters of the telecommunications system (cf. § 1 of the Postal Administration Act of 24 July 1953 -- BGBl. I, p. 676).
4. The interests of the general public call for an ordering of radio traffic, which can only be effectively accomplished by the Federation. This also applies to broadcasting. The allocation and delineation of transmitter frequencies, the determination of their location and transmission power according to radio-technical aspects, so-called cable technology, supervision of radio traffic, its protection against large-scale and local disturbances, as well as the implementation of international agreements all must be uniformly regulated by virtue of the nature of the matter if chaos in radio traffic is to be avoided.
Art. 73, No. 7, Basic Law serves the purpose of making possible the indispensible uniform regulation of these and similar matters. This purpose does not, however, require that in addition to radio and, in particular, transmission-related issues, the broadcasting of programs must also be submitted to statutory regulation by the Federation. In other words, also following from the purpose of art. 73, No. 7, Basic Law is the restriction to transmission-related matters of broadcasting.
5. A historical interpretation of the term «telecommunications system» does not lead to different results. Although it is correct that by means of the administrative practice of the Reich postal services, authorities of the Reich exercised a not insubstantial influence in the period from 1926 to the beginning of 1933 on the organization of broadcasters and the structuring of their programs (cf. the depiction in Bausch, Der Rundfunk im politischen Kräftespiel der Weimar Republik, 1956, pp. 11 ff.; Pohle, Der Rundfunk als Instrument der Politik, 1955, pp. 27 ff.), it is not possible to draw from this that the telecommunications system within the meaning of art. 73, No. 7, Basic Law covers broadcasting as a whole.
a) In the period before 1933, statutory rules for broadcasting were not enacted. Neither the Ordinance for the Protection of Radio Traffic of 8 March 1924 (RGBl. I, p. 273) -- Radio Ordinance -- nor the Act to Amend the Telegraph Act of 3 December 1927 (RGBl. I, p. 331), which provided for the promulgation of the revised Telegraph Act under the title «Act on Telecommunications Facilities», employs the word «broadcasting». The reasoning accompanying this Amending Act (RT III/1924 Drucks. No. 3682) merely mentions broadcasting in the context of imposing fees for the establishment and operation of broadcasting reception facilities. According to the reasoning, the purpose of the amendment of the Telegraph Act was the solidification of the State's radio sovereignty in view of the progress made in radio technology (id. at p. 5). The Act was accepted in the Reichstag in all three readings without discussion (RT III/1924, Negotiations vol 394, p. 11719 and 11732; Stenographic Report of the 346th Session on 24 November 1927).
Under an unbiased reading, the wording of the Act on Telecommunications Facilities is restricted to the regulation of radio-technical issues; it does not give rise to any references to the fact that broadcasting as a whole was assigned to the postal and telegraph system within the meaning of Art. 6, No. 7 and Art. 88(1) of the Weimar Constitution. The same applies to the reasoning behind the draft Act. In the commentaries to the Reich Constitution of 1919, broadcasting is mentioned neither in Art. 6, No. 7 nor in Art. 88(1), let alone included in the postal and telegraph system.
b) Thus, for the «historical development» of the term «telecommuncations system», the Federal Government cannot rely on the legislation but rather only on the administrative practice of the Reich postal services and the Reich Minister of the Interior in the period up to 1933. It particularly relies on this for its position that the competence to regulate the telecommunications system also covers to power to give statutory form to the guiding principles of art. 5 Basic Law.
The tool used not only by the Reich but also by the states to gain influence on the broadcasting of programs was primarily the «licenses» -- common since 1926 and tied to conditions -- for the use of radio transmission facilities of the Reich postal services for the purpose of entertainment broadcasting («Conditions»), to which were appended guidelines for the news and information service («Guidelines») as well as provisions for the Supervisory Committees and the Councils («Provisions»).
It is only conditionally correct that the influence had by the Reich and the states on the broadcasting of programs served the «political impartiality», the «organizational neutrality of the transmission companies» and the safeguarding of the right to freedom of expression (Art. 118 of the Weimar Constitution) in broadcasting. For this assertion, only No. 1 of the Guidelines can be resorted to, which stated: «Broadcasting shall serve no one party. Its overall news and information service shall therefore be strictly structured in a supra-party fashion» (see also No. 10 of the Provisions for the Council of 1926 and No. 1(c) of the Guidelines on the Revised Regulation of Broadcasting of 1932, reproduced in Pohle, supra at pp., 124 ff.). In all other respects, however, a system of State influence and supervision was established with the aid of the Conditions, which approached censorship.
The programming companies were only allowed to disseminate such political news that they had received from a «News Agency» of the «Wireless Services Corporation for Books and Press» (Drahtloser Dienst AG für Buch und Presse), 51 % of whose shares were held by the Reich (No. 2 of the Guidelines). Only non-political and local news was permitted to be obtained from other agencies. News designated by the News Agency or by the responsible state governments as «priority news» (Auflagenachrichten) had to be disseminated promptly, unabridged and unchanged, as was the case for «priority information» (Auflage-Vorträge) (Nos. 3, 5 and 7 of the Guidelines). The Corporation was required to be constantly informed of the «handling» of the news and information provided by the News Agency (No. 8 of the Guidelines). The Supervisory Committee for the news and information services, which was normally composed of a representative from the Reich and two representatives from the responsible state government, was charged with «deciding on all political issues related to programming» (Art. 3(1) of the Conditions). The programming company was obligated «to seek contact with the Supervisory Committee in all political issues of programming and to await its decision» (No. 3 of the Provisions for the Committee). Programs always had to be submitted to its members, and they had to be informed of important program changes. Finally, the Committee had a veto right with regard to all aspects of programming, insofar as not merely issues of art, science or public education were involved (Nos. 5 and 6 of the Provisions). Similar powers were possessed by the Council, whose members were appointed, following discussions with the programming company, by the responsible state government in consultation with the Reich Minister of the Interior. The Council was charged with «participating in the structuring of programming with respect to presentations in the area of art, science and public education» (Art. 3(2) of the Conditions). The Council also had the right to lodge objections to programming (No. 7 of the Provisions for the Council).
The Supervisory Committees and the Councils were characterized as early as 1927 as «censorship authorities» (Dencker, Handwörterbuch der Rechtswissenschaft, vol. 2, 1927, p. 547 [550 f.]). Doubts were expressed whether this administrative practice was compatible the right to freedom of expression safeguarded by Art. 118 of the Weimar Constitution. Häntzschel (HdbDStR II, 651 ) only considered the censoring activities of the Supervisory Committees to be compatible with Art. 118 of the Weimar Constitution because in his view the operation of broadcasting facilities was not a sovereign but rather a fiscal branch of the postal administration aimed at revenues. He stated that broadcasting censorship would be «undoubtedly unconstitutional» if the operation of broadcasting were to be deemed an emanation of a State sovereign right (id. at p. 668 n. 38). At the same time, however, there was just as little doubt then as there is today that as of 1926 the legal relations between the Reich postal services and the programming companies were in the nature of public law
(cf. the written response of the Reich Minister of the Interior of 2 December 1926 to a resolution of the Reichstag, RT III/1924 Drucks. No. 2776; Neugebauer, Archiv für Post und Telegraphie 53 (1925) p. 46 ; id., Fernmelderecht mit Rundfunkrecht, 3 d ed. 1929, pp. 699 f.; id., Archiv für Funkrecht 3 (1930) pp. 155 [166, 203], 627 ; Bredow, Vier Jahre deutscher Rundfunk, 1927, p. 20; Freund, Der deutsche Rundfunk, 1933, p. 54; Schuster, Archiv für das Post- und Fernmeldewesen 1 (1949) p. 309 ; Lüders, Die Zuständigkeit zur Rundfunkgesetzgebung, 1953, pp. 12 f.; Peters, Die Zuständigkeit des Bundes im Rundfunkwesen, 1954, pp. 6 f.; Steinmetz, Bundespost und Rundfunk, 1959, pp. 11 ff.).
In this regard, it is irrelevant whether the basis of these public-law relations were seen in a «license» or «award» (§ 1 of the Radio Ordinance of 1924; § 2 FAG) subject to terms (Conditions) permitting the joint operation of transmission facilities (e.g., the Reich Minister of the Interior; Neugebauer, Bredow, Freund and Schuster, supra; cf. also Art. 4(3) of the Conditions) or in public law relations of another kind regulating the practical usage of these facilities, (e.g., Dencker, supra; Peters and Steinmetz, supra).
Regardless of whether the administrative practice of the Reich postal services and the Reich Minister of the Interior was compatible with Art. 118 of the Weimar Constitution, it cannot be ascertained -- at least in paying broad regard to the «safeguarding of the official influence on the presentations of broadcasting» (Bredow, id. at p. 20) realized with the aid of the Conditions -- that this influence served the objective of ensuring the basic right of freedom of expression, including the prohibition of censorship, in the area of broadcasting. The same applies to the possibilities for interference with the various programming companies secured by the Reich via the Reich Broadcasting Corporation (cf. Bredow, supra, pp. 41 f.). This cannot be countered with the argument that party-political neutrality in broadcasting may have been achieved to a certain extent.
Thus, the Federal Government improperly relies on administrative practice in the period to 1933 when it asserts that the competence to regulate the telecommunications system enables the Federation to give statutory form to the guiding principles in art. 5 Basic Law with regard to broadcasting.
The constitutionality of the administrative practice of the Reich postal services and the Reich Minister of the Interior with regard to broadcasting was furthermore disputed in still other respects as well. The reorganization of broadcasting in 1925-1926 as well as the reform in the summer of 1932 was the result of protracted negotiations between the Reich and the states in the Reich Council and its committees (cf. Bausch, supra, at pp. 40 ff., 91 ff.). In these negotiations, the states took issue with the Reich regarding the latter's competence to regulate the broadcasting system; they particularly objected to the efforts to gain political influence over programming, which were initiated not by the Reich postal services but rather by the Reich Minister of the Interior. The differences of opinion between the Reich and the states were not carried out. Instead, agreement was reached on compromises that provided the states with a not insignificant amount of influence on the broadcasting of programs. Nevertheless, in 1926 and in 1932 the states contested the comprehensive powers claimed by the Reich and emphasized that on the basis of their police and cultural sovereignty, they had the right to regulate broadcasting on their own (cf. Bausch, supra, pp. 55, 102 f., 199 f.). In view of these fundamental differences of opinion between the Reich and the states, it is not possible to refer to a «supplement to the Constitution arising by way of custom» in the sense of a Reich competence (e.g., Scheuner, Expert Opinion, p. 47).
It must finally be added that the «official influence on the presentations of broadcasting» (Bredow, supra) did not emanate from the Reich Postal Minister and the Reich postal services but rather from the Reich Minister of the Interior and the state governments. Schuster (supra, p. 320) correctly emphasized that before and after 1933, «the Reich postal services never had anything to do with the programming side but rather . . . limited itself to the technical side [of broadcasting]». This is confirmed by the fact that «broadcasting law» was only assigned to the area of telecommunications law insofar as it regulated the technical side of broadcasting (cf. Krause, Die Zuständigkeit zur Ordnung des Rundfunkwesens in der Bundesrepublik Deutschland, 1960, pp. 80 ff., in particular, the statements cited there by Ministerial Advisor Dr. Neugebauer in the Reich Postal Ministry).
In all, it therefore cannot be assumed that the administrative practice of the Reich postal services, the Reich Minister of the Interior and the state governments up to 1933 gave rise to a legal term «telecommunications system» covering broadcasting as a whole, which the drafters of the Basic Law could then have adopted.
c) The period from 1933 to 1945 must be left out of consideration. The development of broadcasting in the years 1945 to 1949 is unable to contribute to the establishment of a term «telecommunications system» covering broadcasting as a whole.
d) The historical background of art. 73, No. 7, Basic Law confirms that the telecommunications system does not cover broadcasting as a whole. It can only be unambiguously drawn from the negotiations in the Parliamentary Council that, on the one hand, in contrast to the proposal of the Constitutional Convention at Herrenchiemsee (Report, Descriptive Part, p. 32), the technical side of broadcasting was assigned to the telecommunications system and that, on the other hand, the «cultural side», i.e., the contents of the programs, was to be a matter for the states. The question of whether the organization of the broadcasting system was also to belong to the telecommunications system remained open, without any distinctions having been made between the organization of transmission-related processes and the organization of the broadcasting of programs. The materials do not evidence an even remotely clear response to this question
(for the historical background, cf. JÖR 1 (1951), pp. 476 ff.; ParlRat, Ausschuß für Zuständigkeitsabgrenzung, Wortprotokoll über die 2. Sitzung am 22. September 1948, pp. 4-8, 44-52; Wortprotokoll über die 8. Sitzung am 6. Oktober 1948, pp. 30-33; Wortprotokoll über die 12. Sitzung am 14. Oktober 1948, pp. 37-40; Verhandlungen des Hauptausschusses, 29. Sitzung am 5. Januar 1949, pp. 351 f.).
Since the Parliamentary Council did not assign the «cultural side», i.e., programming, to the telecommunications system but rather viewed this as a matter for the states, then this precludes the assumption that it adopted in the Basic Law a term «telecommunications system» that covers broadcasting as a whole. The statutory regulations permitted or prescribed under art. 5 Basic Law mainly have to do with the contents of programs, i.e., -- in the language of the Parliamentary Council -- the «cultural side» of broadcasting. In accordance with its unambiguous will, such regulations were not to be assigned to the telecommunications system.
6. The competence to regulate the telecommunications system under art. 73, No. 7, Basic Law is thus limited to transmission-related matters.
a) The Federation is not entitled to farther-reaching legislative powers for broadcasting, not even by virtue of the context of the subject matter (cf. BVerfGE 3, 407 ; BVerfGE 8, 143 ). Neither studio technology nor the issue related to the broadcasting of programs entail that the regulation of these -- to the extent that it is possible and required -- is an indispensible prerequisite for the regulation of transmission-related matters of broadcasting (cf. BVerfGE 3, 407 ). Transmission technology and the broadcasting of programs are areas that can be separated and regulated individually. To this extent, «broadcasting» is not a whole that can only be sensibly regulated uniformly by the Federation.
b) To the extent that the Federation can regulate matters of broadcasting under art. 73, No. 7, Basic Law, it may also create statutory rules regarding its «organization». In other words, the Federation has the authority to enact rules on the organization (the operators) of broadcasting transmission facilities. It may be left aside whether the Federation's legislative competence here is derived from art. 73, No. 7, Basic Law directly or by virtue of the interrelated context or whether -- to the extent that administration is at issue -- from arts. 83 ff. Basic Law. The Federation thus might, for instance, establish by law institutions of public law with legal personality, to which could be transferred the construction and transmission-related operation of federally owned facilities for broadcasting (art. 87(3) Basic Law).
However, the Federation may only enact organizational rules for such institutions that are limited to the establishment and technical operation of transmission facilities (but see infra III 1 and E I 5). Organizational regulations for the broadcaster and for the broadcasting of programs are the province of the state legislature. Such regulations have -- on account of art. 5 Basic Law -- much greater significance than provisions on the organization of establishment and technical operation of transmission facilities. To the extent that provisions of an organizational nature have to be enacted for institutions responsible for both the broadcasting of programs and the operation of transmission facilities, the competence for transmission-related affairs thus rests with the state legislature by virtue of the contextual interrelationship.
c) Authority to regulate broadcasting going beyond the area of transmission-related matters is also not available to the Federation under art. 73, No. 7, Basic Law simply because «awards» under § 2 FAG to establish and operate radio facilities and contracts on the use of such facilities have to be made subject to terms (conditions) with respect to the organization of the broadcasting of programs and the contents of programs in order to safeguard art. 5 in conjunction with art. 1(3) Basic Law (cf. the Reasoning accompanying the Government's draft of an Act on Broadcasting, BT III/1957 Drucks. 1434). If the competence for the telecommunications system with regard to broadcasting is limited to transmission-related matters, then the Bundespost is required in making such awards and contracts to give sole consideration to transmission-related aspects (see infra E I 4). «Terms» extending beyond this area would be impermissible.
7. a) The Federation's legislative competence for the telecommunications system also permits regulations that reserve for the Federation the exclusive right to establish and operate radio facilities for the purpose of broadcasting. The radio monopoly of the Reich provided for in the 1928 Act on Telecommunications Facilities can be traced back to the monopoly over telegraphy and, ultimately, to the monopoly over postal services
(cf. § 1 of the Act on the Telegraph System of the German Reich of 6 April 1892 [RGBl., p. 467], and the Amending Act to the latter of 7 March 1908 [RGBl., p. 79], as well as the Radio Ordinance of 1924; cf. also Krüger, supra pp. 5 ff.).
In this regard, the Basic Law did nothing to change the traditional competence of the Reich. To the extent that its regulations are relevant, § 1 FAG has thus become federal law.
Art. 5 Basic Law does not oppose this, since, in contrast to the assertion of the Applicants, it does not require that the broadcasters of programs also control the transmission-related facilities and that they must be able to operate these facilities themselves (see infra E III).
b) Nevertheless, the Federation must observe the principle of action for the benefit of the Federation (cf. BVerfGE 4, 115 ; BVerfGE 6, 309 [361 f.]; BVerfGE 8, 122 [138 ff.]; infra E II). This principle would be violated if the Federation were today to rely on its radio monopoly and make use of its authority to regulate the telecommunications system so as to deprive the existing public broadcasting companies of the right to exercise control over the transmission facilities owned and operated by them. The same would apply if the Federation were to divest these companies by statutory regulation of the frequencies they use and then, in allocating frequencies available now or in the future, not to give them appropriate consideration pursuant to the state regulations on the broadcasters of programs.
8. Thus, under art. 73, No. 7, Basic Law, the Federation has the authority to regulate the establishment and operation of broadcasting transmission facilities. § 3(1) of the Interstate Treaty falls in the area of this sole legislative competence of the Federation insofar as it reserves for the Norddeutschen Rundfunk the exclusive right to establish and operate such transmission facilities. To this extent, § 3(1) of the Interstate Treaty is incompatible with art. 73, No. 7, Basic Law in conjunction with art. 71 Basic Law and therefore null and void. Insofar as § 3(1) of the Interstate Treaty reserves for the Norddeutschen Rundfunk the exclusive right to broadcast programs, it is compatible with art. 73, No. 7, Basic Law.
§ 3(1) of the Interstate Treaty regulates only the establishment and operation of transmission facilities, as well as the broadcasting of programs, but not their reception. It may therefore be left unresolved whether and to what extent the Federation may enact regulations on broadcasting reception facilities and on the fees for the operation of such facilities and how these fees are to be legally qualified.
The granting of the exclusive right to broadcast programs to the Norddeutschen Rundfunk does not conflict with the Federation's legislative powers for broadcasting that might result from provisions of the Basic Law other than art. 73, No. 7, Basic Law.
1. Provisions of this variety might include, for example, art. 21(3) Basic Law (rights of political parties), art. 73, No. 1, Basic Law (defense and protection of the civilian population), art. 73, No. 9, Basic Law (industrial property rights), art. 73, No. 10, Basic Law (inter alia, international control of crime), as well as art. 74, No. 21, Basic Law (inter alia, ocean and costal shipping, inland navigation, inland waterways, meteorological services) and art. 74, No. 22, Basic Law (road traffic). These Federation competences merely permit the regulation of partial aspects of programming (particularly, the allocation of transmission times to political parties and the broadcasting of certain announcements) or various legal questions of broadcasting (e.g., in the nature of copyright). Further Federation competences might be inferred by virtue of contextual interrelationships from its responsibilities, e.g., for national defense, customs and matters of the Federal Office of Criminal Investigations. All of these federal competences, however, do not -- even when seen as a whole -- engender any legislative powers to regulate the broadcasting of programs. In other words, they do not affect the monopoly of the Norddeutschen Rundfunk provided for under state law, regardless of its obligation to observe individual federal regulations. In this regard, it may be left aside to what degree these federal legislative powers have to do exclusive competences and to what extent the Federation has made use of its competences in the area of concurrent legislation.
2. It may remain left aside whether the Federation's responsibilities for foreign affairs and for pan-German issues likewise only permit the regulation of partial aspects of programming and individual issues of broadcasting or whether these responsibilities reach further and allow the Federation to enact regulations for such programs intended for broadcast abroad or for Germans resident in German territories outside the Federal Republic of Germany. It may also be left unresolved whether on account of its responsibilities for foreign affairs and pan-German issues, the Federation may establish by law a superior federal authority or an institution of public law for broadcasting programs and also to set down by statute for this authority or institution the guiding principles resulting from art. 5 Basic Law for the broadcasting and broadcasters of programs. Such broad Federation competences, which are not to be decided upon in the instant proceedings, would only relate to the broadcasting and broadcasters of such programs that are solely or predominantly intended for broadcast abroad or for Germans outside the Federal Republic of Germany.
By way of § 3(1) of the Interstate Treaty, the Norddeutschen Rundfunk has been reserved the exclusive right to broadcast programs «for the general public». By this is meant -- if not exclusively, then at least primarily -- «the general public» of the Federal Republic of Germany. The monopoly granted to the Norddeutschen Rundfunk thus may not conflict with the competences that the Federation might have regarding the regulation of programs specifically intended for broadcast abroad or for Germans outside the Federal Republic of Germany.
3. The Federation cannot derive any responsibilities from art. 5 Basic Law. Art. 5 Basic Law is not a norm describing competences but rather binds that authority entrusted with the regulation of the broadcasting of programs.
In contrast to the assertion of the Federal Government, the Federation does not have any authority flowing from the nature of the matter to regulate by law the broadcasting of programs intended to serve the supra-regional function of national representation within the country, i.e., the self-depiction of the nation before the population of the Federal Republic of Germany. The Federation is endowed with just as little corresponding administrative competences. It is also unable under art. 87(3) Basic Law to establish by law for this purpose a superior federal authority or an institution of public law (see infra E I 6). It therefore requires no review whether this might involve exclusive Federation legislative powers or whether the monopoly provided by § 3(1) of the Interstate Treaty to the Norddeutschen Rundfunk to broadcast programs would be compatible with such federal competence.
The exclusive right of the Norddeutschen Rundfunk to broadcast programs also does not conflict with art. 5 Basic Law (see infra E III).
Thus, the Hamburg Act relating to the Interstate Treaty on the Norddeutschen Rundfunk is, insofar as it refers to § 3(1) of the Interstate Treaty, only incompatible with the Basic Law and therefore null and void to the extent that it reserves for the Norddeutschen Rundfunk the exclusive right to establish and operate transmission facilities for radio and television.
In all other respects, the Act is compatible with the Basic Law to the extent that it refers to § 3(1) of the Interstate Treaty.
By way of the founding of the Deutschland-Fernsehen-GmbH, the Federation violated art. 30 in conjunction with arts. 83 ff. Basic Law. In accordance with the development of German law, broadcasting is a public function. When the State exercises this function in some form, it becomes a «State function» whose fulfillment under art. 30 Basic Law is a matter for the states, insofar as the Basic Law has not prescribed or permitted otherwise. The Basic Law has not prescribed or permitted otherwise in favor of the Federation with regard to the broadcasting of programs (but see infra 5).
1. a) It may be left aside whether the provision of art. 30 Basic Law, which is fundamental for the federal structure of our constitutional order, covers every State activity whatsoever. In any case, falling under this competence-establishing norm is that activity by the State serving the fulfillment of public functions, regardless of whether the means of public law or private law are resorted to. Any other interpretation would, particularly in view of the growing scope of non-intervening public administration, not do justice to the meaning of art. 30 Basic Law. It would also conflict with the historical background of this provision
(cf JÖR 1 (1951) p. 295 ff.; the comments by Representative Dr. Laforet, Parl.Rat., Ausschuß für Zuständigkeitsabgrenzung, Wortprotokoll über die 5. Sitzung am 29. September 1948, pp. 124, 127 f., 135, and the remarks by Representative Dr. Hoch, id. at pp. 129, 138, 145; cf. also Parl.Rat. Verhandlungen des Hauptausschusses, 48. Sitzung am 9. Februar 1949, p. 626).
b) The broadcasting of programs has since 1926 traditionally belonged in Germany to the functions of public administration. Decisive for the inclusion of broadcasting in the area of public administration was the fact that «broadcasting was and is a means of publication and a carrier of news and information of the first order» and that it «operated in the political sector» (cf. Hans Schneider, Expert Opinion, p. 8). The fact that some of the presentations of broadcasting may have been termed «free personal activity» that do not exhibit «any internal relationship to public functions» (cf. Scheuner, Expert Opinion, p. 21) has since then only played a minor role in the legal relations between the State and broadcasting. Ever since the origins of broadcasting, dissemination of news in the broadest sense (cf. Hans Schneider, supra) prompted, and was used to justify, the inclusion of the broadcasting of programs in the sphere of public functions.
This is not contradicted by the fact that under the Weimar Constitution, programs were broadcast by companies organized under private law. Controlling in this regard was not the view that the broadcasting of programs was a matter of private commercial activity but rather, inter alia, the fact that the Reich postal services lacked as a result of inflation the resources to undertake this function itself (cf. Bredow, supra, pp. 12, 19; Bausch, supra, p. 19). However, the Reich postal services made an effort to obtain voting majorities in the organs of the broadcasting companies while forgoing financial investments. In 1926 it succeeded in achieving this objective (cf. Bredow, supra, pp. 29 f.; Pohle, supra, pp. 39 f., 48 f.; Bausch, supra, pp. 31 ff., 58). By way of the reform in 1932, private capital was completely expelled; all shares in the Reich broadcasting corporation and in the regional programming companies that were still privately owned were transferred to the Reich and the states (cf. Pohle, supra, pp. 124 ff.; Bausch, supra, pp. 90 ff.).
It is irrelevant in this context whether the responsibilities claimed by the Reich were compatible with the allocation of competences between the Reich and the states and whether the influence on broadcasting exercised by the Reich and the states (see supra D II 5) was compatible with the right of freedom of expression and the prohibition of censorship (Art. 118 of the Weimar Constitution). Of sole importance here is that this exercising of influence can only be understood as the result of the view that the broadcasting of programs does not belong simply in the public sector but rather in that of public functions.
The period between 1933 and 1945 must also be left out of consideration here. Following 1945, the view of broadcasting as a public function became even more deeply rooted in that institutions of public law were established as broadcasters of programs. In addition, the Federal Act of 29 November 1960 established two public institutions, and the draft of this Act provided such an institution for the second television channel. The functions fulfilled by the broadcasting institutions of public law belong to the area of public administration (BVerfGE 7, 99 ).
c) In summary, it can be stated that broadcasting in Germany has become a public service under public responsibility. When the State concerns itself with broadcasting in some form, it thus exercises a function of public administration.
Similar in result: Superior Administrative Court of Hamburg, Decision of 10 July 1956, III 11/56 -- DVBl. 1957, 67 ; Ipsen, Die Rundfunkgebühr, 2 d ed. 1958, pp. 40 f.; Krause, supra, pp. 106 ff.; Krüger, supra, pp. 16, 78; Maunz, BayVwBl. 1957, 4 ; Quaritsch, JIR 8 (1957/1958) p. 339 [341 f.]; Weber, in Der Rundfunk im politischen und geistigen Raum des Volkes, p. 67; Ridder, Kirche, Staat, Rundfunk, 1958, pp. 42 f.; but see Superior State Court of Munich, Decision of 24 October 1957 -- 6 U 1010/57 -- NJW 1958, 1298 [1299 f.]; Aspelt, Festschrift für Nawiasky, 1956, p. 375 ; Peters, supra, p. 33.
Thus, in contrast to the view of the Federal Government, the broadcasting of programs as a function of public administration is covered by the delineation of competences between the Federation and the states (art. 30 Basic Law), even in those cases in which the State, as here, has resorted to forms of private law.
2. The Federal Government has asserted that the fulfillment of functions of public administration with the means of private law is only covered by art. 30 Basic Law when this involves the implementation of laws. Because the founding of the Deutschland-Fernsehen-GmbH is allegedly not implementation of law, art. 30 Basic Law does not come into play.
However, art. 30 Basic Law applies both to the fulfillment of public functions pursuant to law and to that outside the law. This result is compelled by the relationship of art. 30 Basic Law to Section VIII of the Basic Law (arts. 83-91 Basic Law) and by the fact that this Section has to do with federal administration in that the latter is administration outside the law.
Arts. 83 to 86 Basic Law deal with the implementation of federal laws on account of the separation of competence peculiar to German federalist law to enact and implement federal laws. The contrasting of the «implementation of federal laws» and the «federal administration» in the heading to Section VIII would, however, be incomprehensible if the following articles were merely to cover administration pursuant to law. The areas of federal administration listed in arts. 87 to 90 Basic Law and particularly in art. 87(1) Basic Law are to a great extent administered outside the law. The applies to the Foreign Services, the Federal Railways and the Bundespost as well as to the administration of the federal highways, federal roadways and federal waterways. Arts. 87(1), 89 and 90 Basic Law are not limited to according the Federation, in addition to the competence to implement laws, the power to maintain federal administrative structures (cf., in particular, art. 89(2), second sentence, and art. 87b(1), second sentence, Basic Law, in which the functions of federal administration are detailled). Arts. 83 ff. Basic Law thus also regulate federal administration not dealing with the implementation of laws
see Laforet, DÖV 1949, 221 ff.; Nawiasky, Die Grundgedanken des Grundgesetzes, 1950, p. 122; Peters, Festschrift für Erich Kaufmann, 1950, p. 281 ; Hans Schneider, Expert Opinion, pp. 18 f., 36; but see Köttgen, JÖR 3 , p. 67 [73, 78, 80].
But if Section VIII of the Basic Law also deals with federal administration outside of the law, then this means -- as was not misinterpreted by the Federal Government -- that the principle underlying art. 30 Basic Law also applies to this administration. The founding of the Deutschland-Fernsehen-GmbH is thus to be evaluated under art. 30 Basic Law, even though it was not undertaken in implementation of a law.
3. The Federal Government asserts that the principle behind art. 30 Basic Law -- basic jurisdiction of the states -- is only restated in Section VIII of the Basic Law in art. 83 Basic Law and in that provision, only for administration in implemetation of law; this is said to justify the conclusion that the priority of the states (art. 30 Basic Law) does not apply to administration outside the law. Section VIII of the Basic Law is alleged to have generally prescribed «otherwise» within the meaning of art. 30 Basic Law for this administration.
However, one must look not only at art. 83 Basic Law is evaluating the relationship between Section VIII of the Basic Law and art. 30 Basic Law. This Section does not merely regulate federal administration in implementation of law but rather also, as explained, that outside the law. For the latter as well, this Section has prescribed «otherwise» within the meaning of art. 30 Basic Law. Section VIII thus does not in general prescribe «otherwise» with regard to administration outside the law in such a way that it is exempted from the priority of the states set down in art. 30 Basic Law.
4. a) The words «postal and telecommunications system» in art. 73, No. 7, Basic Law and «Bundespost» in art. 87(1) Basic Law describe the same area (see supra D II 3 c). Under art. 73, No. 7, Basic Law, the Federation may regulate the establishment and technical operation of broadcasting transmission facilities (see supra D II 2, 3, 4, 6, 7, 8). Similarly, under art. 87(1) Basic Law, the Bundespost may also itself establish and operate such facilities. Thus, the Federation has not violated art. 30 in conjunction with arts. 83 ff. Basic Law by way of the construction of postal-owned transmitters designed to serve the broadcasting of a second television channel (see supra A III 1).
b) The broadcasting of programs, on the other hand, does not belong to the «postal and telecommunications system» within the meaning of art. 73, No. 7, Basic Law (see supra D II). Although art. 87(1) Basic Law provides that the «Bundespost» is to be managed as federal administration, the Basic Law has not prescribed «otherwise» within the meaning of art. 30 Basic Law. The founding of the Deutschland-Fernsehen-GmbH is therefore not covered by art. 87(1) Basic Law either directly or by virtue of the contextual interrelationship (cf. supra D II 6).
c) The competence to regulate the postal and telecommunications system does not cover the authority to set down by statute the guiding principles prescribed or permitted by art. 5 Basic Law from a substantive or organizational standpoint for the broadcasting and broadcasters of programs (see supra D II, in particular, 3, 5, 6; D III). This means that the Federation may not makes awards under § 2 FAG and contracts regarding the use of federally owned broadcasting facilities dependent on «terms» going beyond the area of transmission-related affairs.
In contrast to the view of the Federal Government, farther-reaching administrative competences are also not available to the Federation on account of art. 1(3) Basic Law. This provision is just as unable to be considered a competence-establishing norm as art. 5 Basic Law. Pursuant to their responsibilities as delineated by the Basic Law, the Federation and the states are called upon to safeguard basic rights. The states are responsible for ensuring «freedom of broadcasting». In this regard, the Federation's possibilities for action are limited to those granted to it by the Basic Law for the event that a state fails to observe the Basic Law.
d) Legislative and administrative competence for the broadcasting of programs thus rests with the states. The transmission facilities needed for broadcasting programming are subject to the Federation's legislative competence (but see supra D II 6, 7). Under art. 87(1) Basic Law, the Federation is also endowed with corresponding administrative powers and is particularly responsible for the allocation of frequencies to the transmitters; however, it may only undertake this allocation and the conclusion of contracts regarding the use of federally owned transmission facilities from transmission-related aspects. With respect to the cooperation between the Federation and the states required for this, the principle of action for the benefit of the Federation must be controlling. This also applies to the area of so-called «cable technology».
It would not be compatible with the principle of action for the benefit of the Federation (cf. infra II) if the Federation were to divest these companies of the frequencies they use and then, in allocating frequencies available now or in the future, not to give them appropriate consideration pursuant to the state regulations on the broadcasters of programs. The same would apply were it to rely on its radio monopoly and make use of its administrative powers in such a way as to deprive these companies of the right of control over the transmission facilities owned and operated by them.
5. The founding of the Deutschland-Fernsehen-GmbH is not compatible with art. 30 and arts. 83 ff. Basic Law simply because the Basic Law prescribes or permits in art. 87(1) Basic Law federal administrative competences for foreign affairs and pan-German issues.
It may remain unresolved to what extent the Federation is entitled to administrative competences under this aspect with regard to the broadcasting of programs. These would not extend any further than the legislative powers (see supra D III 2). They could at best justify the creation of institutions to transmit programs solely or predominantly intended for broadcast abroad or for Germans resident in German territories outside the Federal Republic of Germany. The fact that the Deutschland-Fernsehen-GmbH is not solely or predominantly to serve such purposes requires no explanation.
6. a) Finally, the founding of the Deutschland-Fernsehen-GmbH can also not be justified from the standpoint of art. 30 and arts. 83 ff. Basic Law with the argument that the broadcasting of programs is a «supra-regional» function or that the Basic Law has permitted the broadcasting by the Federation of such programs that are to serve national representation within the country. In accordance with the nature of the matter, the Federation has no administrative or legislative competences in this area.
b) Competence in accordance with the nature of the matter is established under the «unwritten principle, which is established by the essence of things and thus not in need of express recognition by the Reich Constitution, that certain areas can be regulated by the Reich and only by the Reich because they represent by their nature matters peculiar to the Reich and a priori removed of specific legislative competence» (Anschütz, HdbDStR I, 367; see BVerfGE 11, 89 [98 f.], BVerfGE 11, 6 ). These prerequisites for the recognition of natural federal competence continue to apply today. Conclusions from the nature of the matter must conform to this term and compel a certain solution that excludes a solution appropriate to other possibilities (BVerfGE 11, 89 ).
This is not the case here.
c) Frequencies do not respect state boundaries. To this extent, the broadcasting of programs displays effects that may be termed «supra-regional». This physical «supra-regionalness» is, however, not capable of establishing natural federal responsibility.
The broadcasting of programs, particularly television programs, requires substantial financial investment. For this reason, the first television channel is, as currently broadcast, predominantly a cooperative channel, to which all broadcasting companies contribute. The high costs required for producing full television programming would exceed the financial possibilities of individual companies. One may therefore speak of a financially conditioned «supra-regionalness» in the broadcasting of television programs. However, the exceeding of regional financial resources cannot justify the assumption that in accordance with the nature of the matter, the Federation has responsibility (cf Köttgen, Die Kulturpflege und der Bund, in: Staats- und Verwaltungswissenschaftliche Beiträge, 1957 p. 183 ).
It is also not possible to derive natural federal jurisdiction from the fact that a function (e.g, the broadcasting of television programming) is not performed by each state (the particular broadcasting company) separately but rather by the states (the broadcasting companies) jointly or pursuant to specific agreement. The fact that the joint or coordinated fulfillment of a function by the states (the broadcasting companies) is, regardless of what the motives might be for cooperative work, in and of itself no reason that could justify natural federal jurisdiction. For a federal State, it is a decisive difference whether the states agree or whether the Federation can regulate and administer by law an affair even against the will of the states.
d) The necessity of national representation within the country, i.e., the self-depiction of the nation before the population of the Federal Republic of Germany, is just as unable to give rise to natural federal competence to broadcast programs as the requirement of safeguarding continuity of tradition.
It is certainly necessary that these matters be supported by the State. However, it is also unmistakeable that with these, functions are designated that are unable to be defined more specifically. There are many institutions and presentations of a cultural nature that are intended to serve national representation within the country. Above all, the entire educational system can be understood as the safeguarding of continuity of tradition.
With regard to the furtherance of these functions by way of broadcast programs, controlling is the delineation of the jurisdictions of the Federation and the states by the Basic Law. From the nature of the matter, the Federation would only have jurisdiction to broadcast such programs when these involved affairs of the Federation that from the outset are removed from the jurisdiction of the states and that can thus only be handled by it. This is not the case here. It does not necessarily follow from the nature of the function of «national representation within the country» and «safeguarding continuity of tradition» that the support of these by broadcast programs of the Federation is compelled (cf. BVerfGE 11, 89 [98 f.]). This is all the more so in that the Federation's exercise of influence on the content of programs, without which their «national representative» and tradition-supporting character would be difficult to achieve, would be subject to narrow boundaries by art. 5 Basic Law.
e) Art. 135(4) Basic Law, which, in the event of an «overriding interest of the Federation», permits a divergence from the passage of property regulated in art. 135(1)--(3) Basic Law (cf. BVerfGE 10, 20 [36 ff.]), cannot be used to support the position of the Federal Government. Art. 135(4) Basic Law contains a «special competence» that can be used by the Federation in establishing direct federal administration without its being bound by the requirements of art. 87(3), first sentence, Basic Law (legislative competences of the Federation) (BVerfGE 10, 20 ). This provision is intended to enable the Federation to restore the «organical frame work of collections and libraries of national importance which have been torn apart during war times . . .» (BVerfGE 10, 20 ). For instance, only on the basis of the competence granted it under art. 135(4) Basic Law was the Federal legislature also able to transfer to the «Prussian Cultural Holdings» Foundation (Act of 25 July 1957, BGBl. I, p. 841) the future administration of Prussian cultural holdings (BVerfGE 10, 20 [45 f.]). Art. 135(4) is a special provision. This rule would be superfluous if the Federation were endowed under other provisions of the Basic Law with the authority to assume responsibility for national representation and the maintenance of tradition.
The founding of the Deutschland-Fernsehen-GmbH thus falls under art. 30 Basic Law. The Basic Law has, within the meaning of this provision, neither prescribed nor permitted «otherwise» in favor of the Federation so as to enable this. Thus, the founding of the Deutschland-Fernsehen-GmbH violates art. 30 in conjunction with arts. 83 ff. Basic Law.
In the German federal State, all constitutional relations between the overall State and its component parts, as well as the constitutional relations between the component parts, are dominated by the unwritten constitutional principle of the reciprocal duty on the Federation and the states to act for the benefit of the Federation (cf. Smend, Ungeschriebenes Verfassungsrecht im monarchischen Bundesstaat, Festgabe für Otto Mayer, 1916, pp. 247 ff.). The Federal Constitutional Court has developed from this a number of specific legal duties. With regard to its deliberations on the constitutionality of the so-called horizontal equalization of financial burdens, the Court said: «The essence of the federalist principle does not merely establish rights but also duties. One of these duties is that the financially powerful states are, to a certain extent, to provide assistance to the financially weaker states» (BVerfGE 1, 117 ). In cases in which the law calls for cooperation between the Federation and the states, this constitutional principle may also establish a stronger duty on the participants to take part and result in the situation where an immaterial objection by one of the participants that conflicts with universal cooperation is legally irrelevant (BVerfGE 1, 299 [315 f.]). In making decisions with regard to the granting of Christmas bonuses to public employees, the states must maintain federal allegiance and therefore pay regard to the overall financial structure of the Federation and the states (BVerfGE 3, 52 ). This legal barrier following from the concept of federal allegiance becomes even more apparent in the exercising of legislative powers: «If the effects of a statutory rule do not remain limited to the territory of a state, the state legislature must pay regard to the interests of the Federation and the remaining states» (BVerfGE 4, 115 ). The constitutional principle of the duty to act for the benefit of the Federation can also give rise to the duty on the states to respect international treaties of the Federation (BVerfGE 6, 309 [328, 361 f.]). Finally, under certain circumstances, a state may be obligated with respect to its duty of federal allegiance to take action pursuant to municipal supervision against communities that interfere with their measures with exclusive federal competence (BVerfGE 8, 122 [138 ff.]). Similarly, with regard to the exercise of federal competences in the area of broadcasting, fundamental significance is, as explained above (cf. supra I 4 d and D II 7 b), attributed to the principle of action for the benefit of the Federation.
It is evident from previous holdings that this principle both gives rise to additional, specific duties on the states as against the Federation that go beyond those expressly set forth in the Constitution and additional duties on the Federation as against the states and results in specific limitations on the exercise of powers provided in the Basic Law to the Federation and the states.
The instant case provides an invitation to develop further the constitutional principle of action for the benefit of the Federation in yet another direction: The procedure and style of the negotiations that become necessary under the Constitution between the Federation and its components parts or between the states also are subject to the requirement of action for the benefit of the Federation. In the Federal Republic of Germany, all states have the same constitutional status; they are States that are entitled to equal treatment in transactions with the Federation. Whenever the Federation seeks a constitutionally relevant agreement on an issue under the Constitution that interests and affects all states, this duty of action for the benefit of the Federation prohibits it from operating according to the principle of divide et impera, i.e., to work toward a division of the states, to seek an agreement only with some of them and put pressure on others to accede to it. This principle also prohibits the Federal Government from treating state governments differently in negotiations affecting all states depending on their political composition; in particular, in the politically decisive deliberations, it may not invite only representatives of the state governments with similar political convictions and exclude the state governments siding with the opposition on the federal level. In cases such as these, politicians at the federal and state level belonging to any given party initially have the right in political meetings to clarify and coordinate with one another their positions regarding the solution of the problem of interest to the Federation and the states and then to agree during negotiations between the Federation and the states on further, joint steps. The necessary negotiations between the Federation and the states, i.e., between the governments and their speakers, must also, however, conform with the above-described principles.
The protracted efforts to agree on a new regulation of the broadcasting system entered a new stage when at the start of 1958 the Federal Government proposed federal regulation. After the draft of a federal act had been repeatedly discussed during 1959 with representative of the states, the states agreed in January 1960 to set up a four-member Commission, to be composed of two Christian-Democrat and two Social-Democrat members of state governments; it was to take up the negotiations with the Federation on the part of the state governments. However, this Commission was never invited by the Federal Government to take part in the negotiations. Only one of its members, the Minister-President of the Rhineland-Palatinate belong to the Christian-Democrat Union, took part in a number of discussions -- not in this capacity but rather as member of his party -- between politicians and representatives of the Christian-Democrat and Christian-Socialist Union, which also included members of the Federal Government (cf. the letter of the Minister-President of the Rhineland-Palatinate to Federal Minister Dr. Schröder of 17 November 1960). Insofar as the participants in these discussions came to pertinent agreements, he took it upon himself to inform this Commission and the remaining state governments. Proposals and plans were developed and formulated during these meetings, but they were not made the subject of negotiations by the Federal Government with the state governments or with the Commission set up by them. This particularly applies to the idea, first proposed in one of these talks on 8 July 1960, to establish a corporation with limited liability, to be founded by the Federation and the states for the broadcast of a second television channel, as well as -- likewise discussed in a meeting of 15 July 1960 attended solely by politicians of the Christian-Democrat and Christian-Socialist Union -- to the draft of articles of incorporation, which were to be signed on 25 July 1960. The fact that the state governments headed by Social-Democrat Minister-Presidents were informed of these plans by the Minister-President of the Rhineland-Palatinate by way of letter of 16 July 1960 and invited by him to a meeting with the other Minister-Presidents to discuss these plans on 22 July 1960 did not relieve the Federal Government of its obligation to negotiate directly with all state governments on the plan proposed by it. Its failure to do so violated the duty to act for the benefit of the Federation.
However, also the way in which the states were treated by the Federal Government in the last days before the founding of the Corporation by the Federal Government is incompatible with this duty. The Federal Government knew that the Minister-Presidents of the states first received on 22 July 1960 the opportunity to discuss in their official capacity the plan to establish a corporation composed by the Federation and the states to broadcast a second television channel. The Minister-Presidents, including those belonging to the Christian-Democrat and Christian-Socialist Union, did not accept the Federal Government's proposal without reservation but rather made counter-proposals. The Federal Government was informed of the results of these meetings by way of letter of 22 July 1960. Nevertheless, the Federal Government insisted that the articles of incorporation be signed on 25 July 1960 in the form it had provided. The Federal Government's letter bears the date 23 July 1960, was posted in Bonn on 24 July 1960 at 5:00 PM and received by the addressee, the Minister-President of the Rhineland-Palatinate, on 25 July 1960 at 4:15 PM, i.e., at a time when the articles of incorporation had already been signed and notarized (cf. the letter of the Minister-President of the Rhineland-Palatinate of 17 November 1960). Such a procedure is simply incompatible with the requirement of action for the benefit of the Federation -- even though the Federal Government may have had reason to be annoyed at the persistent opposition of the states or several state governments. It is irrelevant here whether the Federal Government considered the negotiations with the states to have failed and whether it was able to pursue the, in its view, constitutionally permissible course of founding the Corporation without the participation of the states; rather, the point is that each state government, as the constitutional organ of a component State of the Federal Republic of Germany, was able to expect the Federal Government would not respond to the states' counter-proposals, which can be considerd a new plan, with a fait accompli -- and this within an unreasonably short period.
Finally, the duty to act for the benefit of the Federation is contravened by the way in which the Corporation was founded. Again, it is irrelevant whether the Federal Government was able to implement the plan to found the Corporation, which in its view was constitutionally unobjectionable. One may conceive of situations in which the Federation founds a corporation in the interest of the states, whose shareholders include, in addition to the Federation, a «trustee» for the states. However, when it is clear, as here, that the states are unwilling to participate in the corporation with limited liability as planned by the Federation, then the Federation violates the requirement of action for the benefit of the Federation when it selects a «trustee» for the states and, with his assistance, founds a corporation that the states reject.
The Federal Government's conduct climaxes in the act of foundation that called the Corporation into life. The unconstitutionality of the procedure attaches so grievously to the act of foundation because for this reason as well the situation created by it cannot become the starting point of a constitutionally permissible activity corresponding to the Corporation's charter. In this sense, the founding of the Corporation violates the constitutional requirement of action for the benefit of the Federation.
It may be left aside whether and to what extent a state -- with respect to the principle of action for the benefit of the Federation -- also has a claim as against the Federation that the latter not disregard the mutual constitutional order in such a way as to violate the interests of the states as component States of the federal State. In any event, the substance of art. 5 Basic Law -- which has yet to be described -- and the constitutional guarantee of freedom of broadcasting contained therein are of such fundamental importance for the entire public, political and constitutional life in the states that they may demand that in the area of the broadcasting system, the Federation not infringe upon the freedom guaranteed by the Basic Law. This constitutional position of the component State in the federal State may be defended by the state against the Federation in a constitutional dispute pursuant to art. 93(1), No. 3, Basic Law and §§ 68 ff. BVerfGG. For this reason, it may also be asserted in this dispute that by founding the Corporation, the Federation has violated art. 5 Basic Law.
Art. 5 Basic Law contains more than just the citizen's basic individual right against the State that it respect a sphere of freedom within which he may express his opinion without restraint. In particular, by way of art. 5(1), second sentence, Basic Law, the institutional autonomy of the press is also guaranteed, from the procurement of information to the dissemination of news and opinion (BVerfGE 10, 118 ). It would conflict with this constitutional guarantee if the State were either directly or indirectly to regulate or control the press or some part of it. The exercising of influence by the State would only be compatible with this constitutional guarantee of freedom of the press if this were not to alter substantially the concept of a free press on account of the competition with the wealth of newspapers and magazines independent of the State.
The significance of art. 5 Basic Law for broadcasting cannot be assessed without taking into account the above-described substance of art. 5. Irrespective of a special status of the broadcasting system, which shall be treated in the following, broadcasting is, as the press, one of the indispensible means of modern mass communication, by way of which influence is exercised on public opinion and helps shape this public opinion. Broadcasting is more than just a «medium» for the formation of public opinion; it is an imposing «factor» in the formation of public opinion. This participation in the formation of public opinion is by no means limited to news programs, political commentary, or series on political problems of the present, past or future; the formation of opinion takes place to the same extent in dramas, musical presentations, and broadcasts of comedy programs, up to and including the way in which a presentation is staged. Through the selection and structuring of the programs, every broadcaster's programming will exhibit a certain trend, particularly as regards the decision on what is not to be broadcast, what will not be of interest to the viewer or listener, what can be ignored without damage to the formation of public opinion, and how that which is broadcast is to be formed and spoken. It becomes clear from such a perspective that institutional freedom for broadcasting is no less important than for the press, in that broadcasting is also an indispensible means of modern mass communication and factor of public formation of opinion at least as important as the press. This is clearly expressed in art. 5 Basic Law, where in para. 1, second sentence, «freedom of reporting by means of broadcasts and film» are guaranteed alongside freedom of the press.
This does not however answer the question as to the way in which this freedom of broadcasting in general and that of reporting by broadcasting in particular are to be ensured so as to satisfy art. 5 Basic Law. It is here that broadcasting's special status become important, through which it differs from the press. It is of course incorrect that newspaper publishers, newspaper printers and newspapers can be founded and operated in any given number. However, the difference between the press and broadcasting is that within the German press as a whole, there exist a relatively large number of independent publications that compete with one another in their direction, political bias or basic religious stance, whereas in the area of broadcasting, both technical reasons and the extremely large financial investment required for broadcasting programs means that the number of such broadcasters must remain relatively small. This special situation in the area of the broadcasting system calls for special precautions in order to realize and maintain the freedom of broadcasting guaranteed by art. 5 Basic Law. One of the means serving this purpose is the principle on which the existing broadcasting companies have been built: for the broadcasting of programs, the law creates a juridical person of public law that is removed from State influence or at most subject to limited State supervision; their collegial organs are de facto composed of a reasonable mix of representatives from all important political, religious and societal groups; they have the power to control the forces responsible for programming structure and to correct them in such a way as to satisfy the principles set forth in the law for the reasonable, proportional inclusion of all parties with an interest in broadcasting. It does not conflict with art. 5 Basic Law when an institution subject to such requirements is provided under present technical conditions with a monopoly for the broadcasting of programs on the state level; but art. 5 Basic Law does not imply the necessity that such a monopoly be established for an institution within the state.
In order to ensure the freedom in the area of broadcasting, art. 5 Basic Law does not, however, call for the form found in the state broadcasting laws and adopted for the broadcasting companies under federal law. In particular, the federal Constitution does not require that broadcasters of programs may only be public corporations. Private companies can also be operators of broadcasts of this nature when their form of organization offers adequate assurance that all socially relevant forces have their say in a manner similar to that in public corporations and that freedom of reporting remains uninfringed. The Constitution does not prohibit such a company when, for example, the law makes available a special form of incorporation ensuring the specific purposes of broadcasting, particularly its institutional freedom, and subjects to State supervision every corporation broadcasting programs that satisfies the requirements, similar to banking or insurance supervision.
Art. 5 Basic Law at least requires that this modern instrument for the formation of public opinion is not put at the mercy of the State or one particular social group. Broadcasters of programs must thus be organized in such a way that all conceivable groups are able to have influence in their organs and have their say in overall programming and that for the contents of overall programming, guiding principles are binding that guarantee of minimum of substantive balance, objectivity and mutual respect. This can only be ensured when this organizational and substantive principles are generally made binding by law. Art. 5 Basic Law therefore calls for the enactment of such laws.
It may not be inferred from art. 5 Basic Law that broadcasters necessarily be the owners of transmission facilities or endowed with control over them and, as broacasters, necessarily have the right to operate these facilities. Art. 5 Basic Law also does not prevent representatives from the State from being accorded a reasonable share in the organs of the «neutralized» broadcaster. On the other hand, art. 5 Basic Law precludes the State from directly or indirectly dominating a public or private company that broadcasts programs.
The Deutschland-Fernsehen-GmbH founded by notarized contract of 25 July 1960, whose purpose is «to broadcast television programs designed to provide broadcasting recipients in all of Germany and abroad with a comprehensive picture of Germany», was originally composed of the Federal Republic of Germany and Federal Minister Schäffer as shareholders; since the resignation of the shareholder Schäffer, who had provided his capital «on behalf of the states of the Federal Republic of Germany», the sole shareholder is the Federal Republic of Germany. The Corporation is thus completely in the hands of the State. It is an instrument of the Federation and is dominated by the Federal Government and the Federal Chancellor by virtue of their constitutional competences. This determination cannot be countered by the reference to the contents of the articles of incorporation and the Corporation's charter, which only forms a component part of the articles. Even if one were to assume that the Corporation's organs, particularly the Supervisory Council and the Director, work relatively independently and that the principles for programming established in the charter presently take into account the requirements of art. 5 Basic Law -- the institutional freedom of broadcasting, the decisive fact remains that the law and charter of the Corporation fail to offer any assurance that the present form of the Corporation will not be changed. Just as the charter was amended with the resignation of the shareholder Schäffer, it can also be further amended at any time. The «meeting of the shareholders» can adopt any amendment and can ultimately even decide to dissolve the Corporation and reorganize it with new organs (including associated personnel changes). It is an elementary difference whether the above-stipulated organizational precautions and substantive principles designed to maintain freedom of broadcasting are contained in a law or in articles of incorporation.
The founding and existence of the Deutschland-Fernsehen-GmbH therefore violate art. 5 Basic Law.
Judges: Dr. Schunck, Dr. Klaas, Henneka, Dr. Leibholz, Dr. Friesenhahn, Dr. Rupp, Dr. Geiger, Dr. Federer, Dr. Kutscher.
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