HEADNOTES:

1. The constitutional guarantee of broadcasting freedom does not require that the public broadcasters themselves assess the broadcasting user fee. It is constitutional for the Länder to assess this fee by forming a treaty among themselves and subsequently enacting it into Land law.

2. The Basic Law's Art. 5(1), second sentence compels assessment of the broadcasting user fee by a procedure that, first, guarantees to public broadcasting sufficient funds to fulfill its task in the dual public-private broadcasting system and, second, effectively protects it from outside influences on its programming.

3. Funding of public broadcasting via the user fee is governed by the principle of programming neutrality. The procedure for assessment the user fee must take as its starting point the broadcasters programming decisions. The fee may not be used to implement media policy or to guide programming choices.

4. Examination of the public broadcasters funding needs may focus only on (1) whether their programming decisions remain within the legal limits of their mandate, and (2) whether the funding needs deduced from those programming decisions were established correctly and in accordance with the priniciples of efficiency and thrift.

5. Only for reasons that are consistent with broadcasting freedom may the user fee be assessed at a level that gives the public broadcasters less than their thus examined needs. These include in particular the interests of those who pay the fee. Such deviations must be explained.

Judgement of the First Panel of 22 February on the basis of the oral hearings held on 30 November 1993 – 1 BvL 30/88 –
in the proceedings of Judicial Constitutional Review of the question whether the Bavarian parliament's decision of 14 June 1983, confirming the Treaty Concerning the Amount of the Broadcasting User Fee and Amending the Treaty Apportioning Funds Among the Public Broadcasters, which the Länder signed between 6 July and 26 October 1982 (GVBl.1983, p.379) – is incompatible with the Basic Law to the extent it enacted into law that Treaty's Article 1.

DECISION:

The decision on 14 June 1983 by the Parliament of the Free State of Bavaria, confirming the Interstate Compact Assessing the Amount of the Broadcasting User Fee and Amending the Interstate Compact Equilibrating Funds Between the Public Broadcasters, signed between 6 July and 26 October 1982 (GVB1. 1983, p. 379), was incompatible with the Basic Law s Art. 5(1), second sentence to the extent that Art. 1 of the Interstate Compact is concerned.

EXTRACT FROM GROUNDS:

A.

These proceedings address whether the decision confirming the 1982 Interstate Compact Assessing the Amount of the Broadcasting User Fee conformed to the Basic Law. The core of the issue is whether the assessment of the broadcasting user fee by the Bavarian Parliament violates the principle of state non-interference with broadcasting.

I.

1. Originally the broadcasting user fee was a postal fee. It was assessed by the postal service, which broadcast programs and dominated the private broadcasting corporations. The fee was to be paid for the license to set up and operate a broadcasting receiver. The fee was owed to the postal service, and not to the respective broadcasting corporation. The postal service, after deducting its own share, distributed the fee yield among the broadcasting corporations, which also were allowed to broadcast commercials.

The victorious western powers' reorganization of broadcasting after 1945 retained funding via a user fee. In part, however, the broadcasting corporations became the obligees to whom the fee was owed, with the postal service merely collecting it. The postal service, however, still claimed authority to assess the fee amount. But in part by contract it agreed to be bound by the broadcasting corporations' prior consent. The introduction of the additional television fee, for instance, had been preceded by an agreement between the German Federal Postal Service and Northwestern German Broadcasting.

By comparison, in two decisions issued on 15 March 1968, the Federal Administrative Court held that users did not pay the broadcasting user fee for the postal service's permission to set up and operate a broadcasting receiver. BVerwGE 29, 214; UFITA Vol. 52 (1969), 302, 309. Therefore, the fee was not grounded in the law of postal and telecommunications services, and it was not for the postal service to assess the fee. Rather, the Länder were entitled to do so, because they had legislative competence concerning broadcasting matters.

In the same year, the Länder entered into two interstate Treaties. One compact regulated the broadcasting user fee system, and the other concerned the fee amount, which was raised for the first time. Both went into effect on 1 January 1970, after lengthy negotiations between the Prime Ministers and an arduous process of ratification in the Land Parliaments. At the same time, the broadcasting corporations also agreed to equilibrate funds between them. Further, the broadcasting corporations began to establish their own fee collecting system.

In reaction to the difficulties of reaching agreement on the first fee increase, the heads of the Länder governments set up in February 1973 a "broadcasting user fee task force", upon which sat representatives of the Länder State Chancelleries and Audit Courts. Representatives of the public broadcasters ARD (Alliance of German Public Broadcasters) and ZDF (Second German Television) were to be involved. The Committee to Establish the Public Broadcasters Funding Needs (hereafter "Funding Needs Committee") emerged from this task force on 20 February 1975. Still in existence today, it initially was composed of four members from the State Chancelleries, four from the Länder Audit Courts, four independent experts, and a chairman who was not entitled to vote; as needed it also brought in representatives of the broadcasting corporations. The Funding Needs Committee started work on 2 July 1975. Its task was determined as follows in a resolution passed that day by the Prime Ministers:

It is the Committee's task to continuously establish the public broadcasters' funding requirements. It shall submit a report on its activities to the Prime Ministers every two years. When appropriate, it shall submit an audit report stating both the public broadcasters' financial standing and, in particular, its opinion regarding whether and when the broadcasting user fee should be revised. In special cases, the Prime Ministers may at any time request an expert report by the committee.

The committee's papers and recommendations shall serve as decision-making aids for the Land governments and parliaments.

2. a) During the time period relevant to the underlying proceedings, the basis for the broadcasting user fee assessment was the 5 December 1974 Interstate Compact Regulating the Broadcasting User Fee System (Interstate Compact on the Broadcasting User Fee). Its §3(2), first sentence provided that:

Each broadcasting user must pay a basic fee for each radio receiver kept ready for reception, and an additional television fee for each television set kept ready for reception.

Under §3(1), the broadcasting user fee amount was assessed by a special interstate compact. This interstate compact did not provide specific regulations as to the assessment criteria and procedure for assessing the fee.

Art. 8 provided the following regarding payment of the fee:
(1)...
(2) The broadcasting user fees are to be remitted at the payor's risk to the competent state broadcasting company...
(3)...
(4) If a broadcasting user fee has been paid despite absence of an underlying legal obligation, the person on whose account the payment was made has a claim against the competent broadcasting company for repayment of the amount thus paid.
(5)...
b) The fee amount in effect during the relevant time period had been assessed by Art. 1 of the 6 July / 26 October 1982 Interstate Compact Assesssing the Amount of the Broadcasting User Fee and Amending the Interstate Compact Equilibrating Income Differences Between the Public Broadcasters. This Article read:

Article 1
The broadcasting user fee is assessed as follows:
the basic fee per month is 5,05 DM (German Marks)
the television fee per month is 11,20 DM (German Marks)

Art. 3 of this 1982 Interstate Compact obligated the Land public broadcasting corporations and ZDF (Second German Television) to make available a sum of DM 35 million for each project conducted in the experiment with broad band cable television.

This article reads as follows:

Article 3
(1) The Land public broadcasting corporations and the public broadcaster "Second German Television (ZDF)" shall make available a sum of DM 35 million for each project conducted in the experiment with broad band cable television (Cable Pilot Project) in the Länder of Bavaria, Berlin, North Rhine-Westphalia, and Rhineland-Palatinate.

(2) The authorities competent under Land law either may call on the above sum in twelve equal quarterly installments in the middle of each calendar quarter or may postpone these installments until one of the subsequent calling dates. The first calling date will be 15 February 1984; the last calling date will be 15 November 1986. To the extent that they have not yet been called upon before the last calling date, the installments will remain with the general yield of broadcasting fees.

(3) These sums may be spent only on investments and technical operation of the cable television centers, including studio technology and administrative expenses. No later than six months after completion of the experiments, the use of these sums must be verified to all of the Länder by those Länder in which cable pilot projects have been conducted.

(4) The amount of the contributions to be paid by the Land public broadcasting corporations and "Second German Television" (ZDF) shall be assessed pursuant to the television user fee ratio described in Art. 23(1) of the Interstate Compact on the Establishment of the Public Law Corporation "Second German Television"; the amount of the contributions to be paid by the Land public broadcasting corporations among themselves shall be apportioned pursuant to the television user fee ratio in force when this Interstate Compact becomes effective.

Already in its telecommunications report of 1976, the Committee on Improvement of the Technical Communications System had recommended conducting pilot projects in order to test new transmission techniques and new types of programs. In 1978 the Länder Prime Ministers agreed to experiment for a limited time period with broad band cable television, in which the public broadcasters as well as private offerers were to participate. This decision had been preceded by a public controversy in which concern over whether the cable pilot projects were initiating a privatization of broadcasting played a special role. The Land of Hessen stated for the record that it considered any financing of private broadcasters out of the fees collected to be unlawful.

In 1980 the Prime Ministers also agreed on the financing of the cable pilot projects. The following were to be financed by budgetary funds: expenses for the Media Commission for the Scientific Accompaniment of the Projects; the costs of investments in the cable television centers, including studio technology; and the technical operating costs of the cable television centers, including studio technology and administrative expenses. The investment and operating costs were to be financed by funds taken from the general yield of broadcasting user fees. In pursuance of this the Prime Ministers agreed to the following on 14 November 1980:

In a new interstate compact, which will decide on the general adjustment of the broadcasting user fee, an extra monthly charge will be added for a period of three years as a contribution for innovations to the broadcasting user fee. The amount of such charge shall be assessed so as to take in 140 million DM over the three years.

This extra charge, added to the broadcasting user fee, was computed at DM 0.20, and became known as the "Cable Penny".

3. Since then the broadcasting user fee's legal bases have been revised several times. More specific measures regarding assessment of the broadcasting user fee were included for the first time in Art. 4 of the 1-3 April 1987 Interstate Compact on Reform of the Broadcasting System (1987 Interstate Broadcasting Compact). Following a review of the Funding Needs Committee's procedures and composition, the Prime Ministers passed a new resolution on 19 May 1988.

The 1987 Interstate Broadcasting Compact's provisions were in essence adopted in the 31 August 1991 Interstate Compact on Broadcasting in Unified Germany. It is comprised of six separate interstate compacts (Art. 1 through 6) as well as transitional provisions (Art. 7), and it also regulates the repeal of former provisions (Art. 8).

The Interstate Broadcasting Compact (Art. 1 of the Interstate Compact as a whole) regulates in its Part Two the public broadcasters, and in this context also gives directives concerning their financing. The provisions relevant here read as follows:§ 10

Financing Adequate to Functions Performed; Principle of Equilibrating Funds

(1) The provision of funds must place the public broadcasters in a position from which they can fulfill their constitutional and legal duties; in particular it must guarantee the broadcasters' future existence and development.

(2) The equilibration of funds among the Land public broadcasting corporations is part of the ARD's financing system; in particular it secures functionally adequate performance of their tasks by the following broadcasters: Saarland Broadcasters, Radio Bremen, and Free Berlin Broadcasting. The volume of such financial resources and its adjustment to accord with the broadcasting user fee is regulated by the Interstate Compact on Broadcast Financing.

§ 11
Financing

(1) Public broadcasting is financed by broadcasting user fees, revenue from broadcast advertising, and other revenue; the primary funding source is the broadcasting user fee.

(2) Keeping a broadcasting receiver ready for reception shall continue to give rise to a duty to pay the broadcasting user fee.

§ 12
Public broadcasting's financial needs

(1) Public broadcasting's financial needs shall be periodically reviewed in accordance with the principles of economy and thriftiness, and shall be determined every two years.

(2) The establishment of the funding needs shall be based in particular on:

1. the continued transmission, in a competitive manner, of existing radio and television programming, of the television programs permitted by interstate compact in all Länder, and of radio programs authorized by the respective Land's law;
2. share in the new potentialities of broadcasting engineering;
3. development of costs in general and specifically in the media sector;
4. development of advertisement revenue and of other revenue.

(3) Taking into account prior procedure, a high degree of objectivity shall be achieved in establishing the funding needs.

(4) An adjustment of the broadcasting user fee shall be decided upon after each assessment of the funding needs. Section 16 shall remain unaffected.

The other provisions concern advertising.

The Interstate Compact on Broadcasting User Fees (Art. 4 of the Interstate Compact as a whole) in essence regulates the prerequisites for and fulfillment of the fee obligation. The Interstate Compact on Broadcast Financing (Art. 5 of the Interstate Compact as a whole) assesses the amount of the broadcasting user fee and determines which funds are to be paid out for other purposes, namely for development of broadcasting in the new Länder, for establishment of a nationwide radio broadcaster, and for the Land media corporations. Further, the equilibration of funds among the public broadcasters is more specifically regulated.

The Funding Needs Committee is not mentioned in the Interstate Compact. Ist legal basis is the resolution that the Prime Ministers amended on 29 June 1992 to read as follows:

A.

I. Composition of the Committee to Establish the Public Broadcasters' Funding Needs

1. The Committee to Establish the Funding Needs of the Public Broadcasting Corporations Under Länder Law United in the Alliance of German Public Broadcasters of the Federal Republic of Germany (ARD) and the public law corporation Second German Television (ZDF) shall be composed of
- five members from the Länder State and Senate Chancelleries;
- five members from the Länder Audit Courts
- six experts who are independent vis-a-vis the Länder and the public broadcasting corporations (thus replacing an expert in new broadcasting techniques or forms of program production in favor of an additional representative of an Audit Court) as well as
- the chairman (without power to vote).

Since the Land of Rhineland-Palatinate chairs the Broadcasting Commission, the director of its State Chancellery is the chairperson. The member of the Committee appointed by the Bavarian Supreme Audit Court is the vice chairman.

Each Land appoints one member.

To the extent possible, one representative from the Länder whose broadcasters receive funds in the equilibration process shall be among each of the membership groups composed from the Länder State and Senate Chancelleries, from the Länder Audit Courts, and from the experts.

Regarding fulfillment of their tasks, the members are independent and not subject to mandates or directives.

2. Experts from the field of broadcasting technology shall be brought in as consultants to the Committee.

3. The group of experts shall be composed of the following persons:
a) two auditors familiar with examining public budgets;
b) two representatives from the business administration sector; they shall have expert knowledge in questions of personnel, or in investment and economic rationalization;
c) one representative from the field of science; he shall be qualified to hold judical office or superior office in the civil service, and having special experience in the field of broadcasting;
d) one representative from the media business; he shall have experience in arranging and commercializing program productions.

4. The Länder that do not delegate members to the group of State and Senate Chancelleries appoint one expert from each of the fields of economic audit, business administration, and science.

5. Subsequently, the experts are each appointed by the Prime Ministers for a term of four years; a re-appointment is permitted.

The chairman of the Broadcasting Committee, acting simultaneously on behalf of the other Länder, concludes the employment contracts with the experts. These contracts do not need the approval of the Prime Ministers.

II. The Committee's Tasks

1. The Committee s task is to continuously establish the broadcasters funding needs. It shall do so on the basis of the number of registrations, and shall act pursuant to the applicable provisions of broadcast law, in accordance with the principles of economy and thriftiness, and with a view toward maintaining programming autonomy.

2. In keeping with Art. 1(12) of the Interstate Compact on Broadcasting in Unified Germany, the Committee submits an establishment report to the Prime Ministers every two years. This report shows the broadcasters' financial status and in particular gives the Committee s opinion regarding whether, in what amount, and at what time an adjustment of the broadcasting user fee appears necessary. In the future, too, it shall point out the necessity of and possibilities for change in the equilibration of funding among the broadcasting corporations.

3. In its establishment report, the Committee submits a recommendation, substantiated by computation, for any fee adjustment that may be needed. The recommendation may either be given by way of figures, or, if there are various possibilities of development, by way of a spreadsheet.

4. Dissenting opinions of committee members shall, upon request by those members, be included in the report.

5. In special cases the Prime Ministers may at any time request an expert report by the Committee.

6. The Committee's papers and recommendations shall serve as decisionmaking aids for the Land governments and parliaments.

III. Procedure And Decisionmaking

1. During deliberations, representatives of the public broadcasters shall be consulted as required. Before the Committee as a whole forms its final opinion, the broadcasters' directors shall be given opportunity to state their opinions and to engage in discussion. For this purpose, ARD and ZDF shall be informed of the essential provisional results.

2. The Committee shall in turn respond to the Prime Ministers regarding the broadcasters' stated opinions concerning the Committee's report, which shall be forwarded to the Prime Ministers.

3. The Committee makes resolutions by vote of a majority of at least ten of its members who are entitled to vote.

IV. through VI.

...

The experts are named in Part B.

II.

(1) The underlying action's Plaintiffs - Bavarian television viewers - demanded repayment of that share of the broadcasting user fee which the Bavarian Broadcasting Corporation was to make available for financing the cable pilot projects pursuant to Art. 3(1) of the 1982 Interstate Compact. They have argued as follows that the "Cable Penny" was not part of the broadcasting user fee, but rather a separate levy that required separate legal evaluation. By its nature it was an unlawful extra levy, because equivalence of performance and counterperformance was lacking, since 99 percent of all households were not getting to enjoy cable television. Further, the amount was used for an illegal purpose, since it served the funding of private broadcasting, and thus primarily commercial interests.

The Administrative Court dismissed the complaint (ZUM 1987, 472). The court held that the disputed portion of the broadcasting user fee constituted neither a tax nor a special levy. It was dedicated to funding permissible tasks within the scope of broadcasting as a whole. These included the testing of new technologies for supplying broadcasting users with radio and television programs. Broadcast of private offerors' programs did not make the "cable penny" unlawful, since the only relevant issue was the purpose of testing new technologies, which was legal under broadcasting law. The broadcasting users' obligation to pay the full fee, even if they could not receive the programs broadcasted via cable, did not violate the principle of equivalence, with which fees must comply. This principle had not been substantially distorted, since the disputed portion of the fee amounted to less than two per cent of the total fee. The payment obligation for all television viewers did not violate the principle of equality, because in the future all viewers would benefit from the experience gained from this experiment.

(2) Upon the Plaintiffs' appeal, the Superior Administrative Court stayed the proceedings and submitted to the Federal Constitutional Court the following question:

whether the Parliament of the Free State of Bavaria's decision, on 14 June 1983, to confirm the Interstate Compact Assessing the Amount of the Broadcasting User Fee and Amending the Interstate Compact Equilibrating Funds Among the Public Broadcasters (GVB1. 1983, 379), signed by the Länder between 6 July and 26 October 1982, was unconstitutional insofar as Art. 1 of the Interstate Compact is concerned.

a) Decision of the case, the court explained, depended on whether, given the Bavarian Parliament's confirmatory decision, Art. 1 of the 1982 Interstate Broadcasting Compact a valid legal basis for levying the dispouted portion of the broadcasting user fee. If Art. 1 were valid, the appeal would have to be dismissed on the merits. But if Art. 1 were unconstitutional, the appeal would be well-founded and the Plaintiffs would be entitled to repayment, because the increased fee would lack a legal basis. The relevance of this issue was not affected by the fact that the 1982 Interstate Broadcasting Compact had in the meantime been replaced by a new interstate compact. All the repayment claims in dispute arose while the 1982 Interstate Compact was in force.

b) Art. 1 of the 1982 Interstate Compact, the court continued, violated the Basic Law in two respects:
aa) It violated the principle of state non-interference contained in the Basic Law's Art. 5(1), second sentence. This principle also applied to funding of the public broadcasters. Their fee-levying authority, without which the freedom guaranteed by the constitution's basic rights could not develop, followed from this principle. Programming was free and independent only when any influences on its economic preconditions likewise were rendered impossible.

It was true that the dissenting vote to the second broadcasting judgment (BVerfGE 31, 314[345]) had stated the opinion that fee assessment by the parliaments was acceptable due to the public broadcasters' monopoly, so long as the state both refrained from exerting influence on programming via fee regulation and also ensured sufficient funding. But constitutionally prohibited influence was not only given when financing became insufficient, but rather even when the fear prevailed among the broadcasters that "good behavior" is a precondition for sufficient financing. The present manner of funding created such a situation. Many examples supported the reasonableness of such fears. Their effects on programming, however, were hardly provable.

Given the public broadcasters' authority to levy fees pursuant to the Basic Law's Art. 5(1), second sentence, the state's assessment of the fees constituted an encroachment upon broadcasting freedom. This encroachment violated the Basic Law, because there were funding modes that limited broadcasting freedom less. One such mode was assessment of the broadcasting user fee through the public broadcasters' by-laws. This would not conflict with the requirement of statutory authorization. That requirement would be satisfied if a statute authorized the public broadcasters to assess their fees. Concerns of third parties could be addressed by a requirement of subsequent approval. If such a means that would curtail broadcasting's freedom from state interference less were available, then it was the legislature's duty, in view of the principle of proportionality, to choose such means.

bb) Further, Art. 1 of the Interstate Compact was unconstitutional because it imposed an impermissible special levy on television viewers for the duration of the cable pilot projects, thus violating the Basic Law's Art. 3(1). The share of the fee earmarked for the cable pilot projects did not serve fulfillment of the tasks that the public broadcasters must perform, but instead served tasks of general government administration, namely the restructing of the media system. It therefore had no remunerative function. It was irrelevant whether one could separate out this share of the fee or not. Even if one could not, this would not change the substantive result that a selected group was being made subject to a public burden which, by its nature, the general public should bear. For the same reason, the fee did not simply benefit a specific group. Therefore, it did not meet the Federal Constitutional Court's requirements for permissible special levies.

c) In addition, the Bavarian Parliament's decision confirming the Interstate Compact had not been made and publicized in the requisite form for it to become effective.

In Bavaria, interstate compacts were not transformed into Land law by statute, but by a confirmatory resolution of the Land parliament, without participation of the Senate. Legal duties toward third persons, however, could be imposed only by statute. The Basic Law's Art. 20(3) allowed neither the federation nor the Länder resolutions that had the same legal status as statutes. Even if the confirmatory resolution fulfilled the Basic Law's democratic requirements, it still would not meet the rule-of-law principle's requirements. Only the formalities of the statute-enactment procedure guaranteed the required security in the case of encroachments on basic rights. Even though the transformation of interstate compact provisions into state law was not expressly regulated, to this extent Art. 28(1), first sentence restricted the constitutional autonomy of the Länder.

Bavaria's practice of not publicizing the Land parliament's confirmatory resolution, but instead merely having the Prime Minister mention it in the Interstate Compact's preamble, was unconstitutional. The confirmatory assent was the normative act upon which the compact's validity was based. Therefore, it had to be publicized. The contrary opinion of the Federal Administrative Court, BVerwGE 74, 139; 22, 299 [301f.], was not convincing.

III.

The following authorities have stated their opinion on the decision to obtain a ruling from the Federal Constitutional Court: the Bavarian Prime Minister, who adopted the opinion stated by the North Rhine-Westphalian parliament; the Bavarian Senate; Rhineland-Palatinate's parliament, which adopted the opinion stated by the parliaments of Baden-Württemberg and Schleswig-Holstein; the Bavarian Central Office for New Media (BLM); the Alliance of German Public Broadcasters (ARD), and Second German Television (ZDF) as well as Bavarian Broadcasting; the Committee to Establish the Public Broadcasters' Funding Needs (Funding Needs Committee); the President of the Federal Administrative Court; the Bundesbank; the Plaintiffs in the underlying proceedings, and the Federal Association of German Newspaper Publishers.

1. In the opinion of the Bavarian Prime Minister, the assessment of the broadcasting user fee by the Land parliaments does not infringe freedom of broadcasting. ...
2. In the Bavarian Senate's opinion, the confirmatory resolution by the Bavarian Parliament conforms to the Basic Law. ...
3. The President of Rhineland-Palatinate's parliament, who spoke on that parliament's behalf, concluded that the present system for assessing the broadcasting user fee is constitutionally unobjectionable. ...
4. In the BLM's opinion, broadcasting freedom does not exclude the possibility of state measures regarding the broadcasting order. ...
5. ARD (Alliance of German Public Broadcasters) and ZDF (Second German Television) consider the present procedure of fee assessment to be constitutionally inadequate. They have argued as follows:

The constitutional guarantee of broadcasting freedom included the right to a functionally adequate funding of public broadcasting. This right completed and ensured freedom of programming. Therefore, it had to be formulated by statute in a way that minimized as far as possible the dangers to freedom of programming. The crux of the matter was the decision regarding who shall assess the broadcasting user fee, at what intervals, and according to which criteria.

The procedure presently used contained procedural deficiencies that were constitutionally significant. It was too slow and held too many causes for conflict, and it did not guarantee decisions that were adequate in terms of issues or needs, but instead left room for the influence of political motives. Above all, it bore the danger of encroachments, for it caused the state to get deeply involved in estimating the broadcasters' funding needs - which were conditioned by their programming mandate - without it being possible to determine whether the boundary separating it from an encroachment had been crossed. In such cases the protection of basic constitutional rights had to meet the danger of encroachments head on and be manifested in a procedure that secures freedom.

It was possible to draft procedures more closely in line with constitutional requirements into better account than the ones used so far. ...

In addition, the drop in advertising revenue, above all, had contributed over time to an increase in the use of the fee assessment to politically influence the public broadcasters. ...

Since it was not possible, to make the substantive criteria for the fee decision more objective, the fee assessment procedure had to be improved. To this extent ARD and ZDF suggest adoption in an interstate compact of criteria for the establishment of the funding needs, of a regulation of the assessment procedure, and of provisions concerning the status and composition of a modified Funding Needs Committee.

The "Cable Penny" was constitutionally unobjectionable. It was not a surcharge on top of the broadcasting user fee, but instead was inseparably joined to it. It was simply one factor to be considered when calculating the fee increase....

6. Bavarian Broadcasting, the defendant in the underlying proceedings, does not share the opinion of the court that requested a ruling from the Federal Constitutional Court. It has argued as follows:

Statutory assessment of the broadcasting user fee did not violate the Basic Law's Art. 5(1), second sentence. The legislature had a duty to financially secure the public broadcasters' ability to function and perform. Regulations that have this purpose were not encroachments upon freedom of broadcasting, but instead served its development. Self-determination regarding funding was not part of the autonomy of broadcasting guaranteed by basic constitutional rights. Regulation of funding, however, could not be allowed to become a means of dominating or influencing broadcasting. Because such a danger could not be dismissed, the legislature had to consider first and foremost when assessing the broadcasting user fee the broadcasters' autonomous decision regarding planning and arrangement of programming. That the broadcasters were bound by their statutory tasks sufficiently ensured the application of adequate standards in this process. ...

Nor had the Basic Law's Art. 3(1) been violated. The cable pilot projects, the costs of which were to be covered by the broadcasting user fee, served the innovative further development of broadcasting under the conditions of progressive technology. This was a permissable purpose under broadcasting law. The "Cable Penny" was neither a share of the broadcasting user fee that can be separately judged nor a surcharge upon the broadcasting user fee. Instead it was only a factor to be considered when calculating the broadcasters' funding needs in view of the duty make funds available.

7. The Funding Needs Committee explained its procedure for establishing the broadcasters' funding needs, and particularly stressed that it refrains from making any evaluation of the broadcasters' programming. In addition, it outlined its efforts to make the establishment more objective, differentiating between three methodical steps: determining needs for the public broadcasters' continued existence through index-based calculations; proving continuously, based upon illustration methods yet to be developed, that broadcasting is done economically; and proving development requirements from case to case based on project calculations.

8. The President of the Federal Administrative Court has transmitted a statement by the Seventh Review Senate opining that, for the following reasons, the confirmatory resolution by the Bavarian State Parliament adopting the 1982 Interstate Compact is not unconstitutional.

The Seventh Review Senate repeatedly has held the Bavarian practice of assenting to Interstate Compacts to be constitutional, and it adhered to this opinion.It had not yet expressly stated an opinion regarding whether the Land parliaments are authorized to assess the broadcasting user fee, because it considered this question unproblematic. The points made by the court that requested a ruling by the Federal Constitutional Court did not necessarily lead to a conclusion of unconstitutionality.

It was true both that the Basic Law's Art. 5(1), second sentence guaranteed broadcasting's freedom from state non-interference and that influence could be exerted on the public broadcasters by means of fee assessment policy. One could conclude from this, however, only that an impermissible exertion of influence infringes freedom of broadcasting. The mere possibility of misuse did not by itself amount to a violation of the constitution.

There also was no unlawful special levy here. True, the cable pilot projects added DM 0.20 to the broadcasting user fee. But this did not change the nature of the broadcasting user fee. It was a fee paid to fund broadcasting as a whole, which also included experiments with broad band cable television. Therein lay no impermissible expansion of the public broadcasters' scope of duties. Under these circumstances, one could not speak of a misuse of the "Cable Penny" for an improper purpose.

9. The Bundesbank has transmitted a writing that the Lower Saxony Central Bank, in consultation with the directorate of the Bundesbank, sent to the Lower Saxon State Chancellery. For reasons of monetary policy, it warned against automatically adjusting the broadcasting user fee to the rate of price increase of a set of goods specific to broadcasting.

10. Initially, the Plaintiffs in the underlying proceedings adopted those views expressed by the court that requested a constitutional ruling which concerned violation of broadcasting freedom and the principle of equality.

Later, they argued additionally that the "Cable Penny" did not comply with the Basic Law because it contributed to a subsidy of private broadcasting. Further, it constituted an impermissible special levy, since broadcasting users who had and those who lacked cable connection were enlisted equally to pay the "Cable Penny", although they did not form one homogeneous group.

Exertion of political influence on programming could be verified in many ways. Nonetheless, they now felt that the assessment of fees could not be taken away from the parliamentary legislator. But a procedure was needed that better accounted for the public broadcasters' programming authority. Particularly since it was too closely associated with the state and its expertise was one-sided, the Funding Needs Committee failed to satisfy constitutional requirements.

11. The Federal Association of German Newspaper Publishers believes that assessment of the broadcasting user fee by the public broadcasters would lead to the possibility that the broadcasters could impinge on the basic rights of other media, namely the press. It has argued that every increase in the broadcasting user fee encumbered private households' media budgets. Since these households could not influence the broadcasting user fee amount, every increase would be compensated by cuts in expenditures for other media, especially the subscription press. ...

IV.

At the oral hearing, statements were given by the Bavarian State Government, ARD and ZDF, Bavarian Broadcasting, members of the Funding Needs Committee, the Plaintiffs in the underlying proceedings, the Bundesbank, the BLM, and the Association of Private Broadcasting and Telecommunication.

B.

The Bavarian parliament's decision confirming the 1982 Treaty was, to the extent it enacted into law the Treaty's Article 1, incompatible with the Basic Law.

I.

The 1982 Treaty was not unconstitutionally enacted into Bavarian law.

1. It does not violate the Basic Law's Art. 28(1), first sentence to enact a treaty into Land law via a confirmatory decision by a Land parliament, and to give public notice of that decision through the Prime Minister's announcement of it in the preamble of the treaty, which is published in the official laws register. Under Art. 28(1), first sentence the constitutional order in the Länder must, inter alia, conform to the principles, embodied in the Basic Law, that govern the democratic, social-welfare state bound by the rule of law. Art. 28(1) thereby seeks to guarantee that measure of structural homogeneity between the federal state as a whole and its constitutive states that is indispensable for a federation to function. But it does not seek uniformity (cf. BVerfG 9, 268 [279]). On the contrary, the Basic Law proceeds from a premise of fundamental constitutional autonomy for the Länder (cf. BVerfGE 36, 342 [361]; 64, 301 [317]; and citations therein). It requires only a minimum of homogeneity, the content of which Art. 28(1) defines. A narrow interpretation of Art. 28(1) corresponds with this deference to the Länder constitutions. The homogeneity requirement applies only to Art. 28(1)'s determinations of the state's structure and its goals, and is further limited by the principles that govern these determinations. The specific forms that these principles have found in the Basic Law do not bind the Länder constitutions.

One of the constitutional rule-of-law principles that in any event does bind the Länder, however, is that any state act that creates a burden needs a statutory foundation, and that in providing this the parliament itself must make the essential decisions. This presupposes a certain measure of formality, without which the state bound by the rule of law would drift from its constitutional moorings. But in what form the rule-of-law postulate is realized is, under Art. 28(1), first sentence, important only to the extent that a given form is essential for attaining the rule-of-law goal. One such essential is that every normative duty be recognizably and concretely traceable to the parliament's intent to create the norm. An informal act cannot achieve this; some formal act is necessary. But the rule-of-law principle does not specify one particular form that alone can fulfill this postulate.

The principles governing the state bound by the rule of law further demand that statutes be published accessibly. Otherwise, those to whom the norm is addressed could not adjust their behavior accordingly. In terms of the constitutional principle at issue here, however, no particular manner of publication is required, so long as the function of publication is protected. Rather, the responsible norm creator is obligated to provide a promulgation procedure that fulfills its purpose in upholding the rule of law, which is to make it possible for the public to reliably take notice of applicable law (cf. BVerfGE 65, 283 [291]).

The enactment of treaties into domestic law is different from usual legislative procedure in that only the treaty contains the norm's content. The parliament's decision, on the other hand, merely gives an imprimatur to statutory content that lies elsewhere. Of course, this imprimatur alone makes that content binding. Therefore, the parliament's decision must, first, clearly reflect the intent to enact the norm into law and, second, allow those to whom the norm is addressed to recognize that the order for it to apply as law came from the properly authorized state organ. But the decision itself need not be published. Only publication of the norm's content is indispensable. Failure to promulgate and publish the parliament's confirmatory decision, which itself has no content and merely refers to the treaty, impairs neither recognition of the norm's content nor certainty of its validity as domestic law.

The practice of the Bavarian state satisfies these requirements.

2. We need not now definitively clarify whether the Basic Law's Art. 20(3), in addition to Art. 28(1), first sentence also directly binds the Länder. Even if it did, it would not necessarily impose further drafting and promulgation requirements for the enactment of treaties into Land law. Nor does the rule-of-law principle, as expressed in Art. 20(3), contain precepts and prohibitions that are precisely and clearly defined. Rather, the responsible state organs are left to deduce concrete requirements from it. Due to the principle's broadness and generality, they must act cautiously in doing so (cf. BVerfGE 57, 250 [276]; 65, 283 [290]). Caution is especially appropriate concerning formal requirements that do not affect the rule-of-law principle's essential content. Accordingly, in this respect, too, the Bavarian enactment procedure would not be objectionable.

II.

The assessment of the broadcasting user fee in Art. 1 of the 1982 Treaty, and the subsequent enactment of it into Land law via the Bavarian parliament's confirmatory decision, did not satisfy the requirements of the Basic Law's Art. 5(1), second sentence.

1.a) Art. 5(1), second sentence guarantees freedom of broadcasting. This freedom promotes free formation of individual and public opinion (cf. BVerfGE 57, 295 [319]; 83, 238 [295 ff.]; and most recently 87, 181 [197]; the Hessian Television Channel 3 Decision). Free formation of opinion, a prerequisite for development of both individual personality and a democratic constitutional order, occurs in a process of communication. This process cannot be maintained without media that transmit information and opinions, including their own. Broadcasting has special importance among the media due to its broad effect, its immediacy, and its suggestive power. Free formation of opinion, therefore, will succeed only to the extent that broadcasters freely, comprehensively, and truthfully inform. As a result, under the conditions of modern mass communication, attainment of Art. 5(1)'s normative goal depends essentially on constitutional protection of broadcasting's communicative function.

Broadcasting fulfills its communicative function through its programming, and not just its political and informative programs. Broadcasting freedom, therefore, is first and foremost programming freedom (cf. BVerfGE 59, 231 [258]; 87, 181 [201]). It guarantees that selection, content, and formation of programs remains the province of broadcasters and can be based on communications criteria. It is broadcasters themselves who may determine, based on their own professional criteria, what their statutory mandate to broadcast demands from a communications standpoint. It is therefore improper to use broadcasting to serve non-communications purposes (cf. BVerfGE 87, 181 [201]). This is true not only for influences that third parties exercise on programming directly, but also for other influences that can impair programming freedom indirectly (cf. BVerfGE 73, 118 [183]).

It is not only the state that threatens such uses of broadcasting, but also societal forces. Therefore, it would not be enough to understand the Basic Law's Art. 5(1), second sentence merely as a negative or defensive right that only limits state action. Broadcasting may not be abandoned either to the state or to any societal group (cf. BVerfGE 12, 205 [262]). The fundamental right of broadcasting freedom thus calls for a positive legal order that insures that broadcasting address and convey the variety of topics and opinions which play a role in society. This in turn requires substantive, organizational, and procedural regulations that are informed by broadcasting's task and capable of attaining what Art. 5(1) as a whole seeks to achieve (cf. BVerfGE 57, 295 [320]; 83, 238 [296]).

As indispensable as the state is for guaranteeing this broadly understood broadcasting freedom, so too are its representatives themselves very much in danger of subordinating that freedom to their own interests. The fundamental constitutional communications rights originally were aimed at preventing the state from subjugating the communications media, and today these rights play their most important role in fending off state control of news and information reporting (cf. BVerfGE 57, 295 [320]). Art. 5(1), second sentence prohibits the state from directly or indirectly controlling a corporation or public institution that broadcasts (cf. BVerfGE 12, 205 [263]). But this prohibition encompasses more than the guarantee of broadcasting freedom vis-à-vis the state. It further prevents all uses of broadcasting as a political instrumentality.

The protection offered by Art. 5(1), second sentence is not limited to the manifest dangers of direct guiding or censuring of broadcasters. It also encompasses subtler, indirect means by which state organs gain influence over programming or exert pressure on those who work in broadcasting (cf. BVerfGE 73, 118 [183]). The state has such means because, in pursuance of the Art. 5(1)'s normative goal, it organizes, licenses, regulates, and in part funds broadcasters, as well as grants broadcast frequencies. The opportunities necessarily created thereby for influencing the broadcasters' communications activities, however, should be prevented as much as possible. This is true for the one-time acts of creating and structuring broadcasters, but is even more important for the recurring acts of funding and regulating.

For this reason, the Federal Constitutional Court has decided previously that, when granting private broadcasters authority to broadcast, the responsible state agency may not be given so much latitude to act or to evaluate that improper considerations could influence its decision. This holding is particularly true since such evaluative discretion exerts pressure even before the decision, and thereby could promote "self-censorship" by applicants. Art. 5(1), second sentence thus prohibits assessment latitude or elements of discretion if these require content-based evaluation of programming, or if their exercise has direct effects on programming content (cf. BVerfGE 73, 118 [182 ff.]). It was on such grounds that the Federal Constitutional Court overturned a regulation in North Rhine-Westphalia concerning allotment of broadcast frequencies, because it allowed that Land's government, when apportioning frequencies, to freely choose between specific applicants and their program offerings (cf. BVerfGE 83, 238 [323]).

Nor does legislative intervention satisfy the need for protection. Certainly the legislature has a duty both to protect broadcasting freedom from non-communications interests of third persons and to create the positive legal order that guarantees attainment of Art. 5(1)'s normative goal. But despite this it, too, constitutes a source of danger to broadcasting freedom, because the tendency to use broadcasting as an instrumentality can exist not only in the government, but also in the parties represented in parliament. As a branch of state power, the parliament is subject to public control. Because such control depends essentially on media freedom, the parliament may not be allowed influence over the content and form of a broadcaster's programming beyond the statutory programming standards that protect broadcasting's function (cf. BVerfGE 73, 118 [182]; 83, 238 [323 ff.]).

b) These principles also must be respected when funding public broadcasting. Particularly in light of the expansion of broadcast offerings to include more private broadcasters' programs, public broadcasters must guarantee that broadcasting's classical mandate is fulfilled. This encompasses not just informing, entertaining, and forming public opinion and will, but also a cultural responsibility (cf. BVerfGE 73, 118 [158]). Only when public broadcasting succeeds at this, and remains competitive with private broadcasters, does the dual public-private system in its current form – which places on private programmers, who are financed through advertising, less stringent demands than on public broadcasters – comply with the Basic Law's Art. 5(1), second sentence (cf. BVerfGE 73, 118 [158 ff.]; 74, 297 [325]; 83, 238 [297]). This norm does not prescribe a particular funding regime for public broadcasting. But, as the preceding discussion makes clear, the funding must make public broadcasting capable of fulfilling its function in the dual system and, at the same time, effectively protect it from any use of the funding decision to politically influence programming.

aa) The Federal Constitutional Court has previously developed the requirement that funding suit public broadcasting's function. The manner and scope of funding must fit broadcasting's tasks. The appropriate manner of funding public broadcasting is via the user fee (cf. BVerfGE 73, 118 [158]; 87, 181 [199]). It allows broadcasters to offer programming that, independent of viewer numbers and advertising commissions, meets the constitutional requirements for variety of topic matter and opinion. Its justification lies in unrestricted fulfillment of this function, and in securing for the people their basic broadcast programming needs (cf. BVerfGE 73, 118 [158]). Since private broadcasting's current deficit of topical broadness and thematic variety is acceptable only to the extent which and so long as public broadcasting remains fully capable of functioning well, it remains justifiable to link the duty to pay a user fee solely to participation, as evidenced by possession of a device for receiving broadcasts, without regard to the use habits of individual viewers and listeners (cf. BVerfGE 87, 181 [201]).

Funding sources other than fees, including advertising revenue, are admissible and can even strengthen public broadcasting's independence. But, due to their inherent tendencies to constrict programming and variety, they may not rob funding by the user fee of its primary importance (cf. BVerfGE 87, 181 [200]). At present, however, this limit has not been reached.

In terms of the scope of funding, too, the decisive point is that the dual system's constitutional admissibility depends on public broadcasting's ability to function well. From this premise, the Federal Constitutional Court has developed a guarantee of existence and development of public broadcasting that applies as long as the legislature maintains its fundamental media-policy decision in favor of a dual broadcasting system (cf. BVerfGE 73, 188 [158]; 74, 297 [324 ff.]; 83, 238 [298 ff.]). This guarantee also encompasses sufficient funding to fulfill broadcasting's purpose. Thus it is a funding guarantee as well. Complementing it is a right of the public broadcasters, likewise derived from Art. 5(1), second sentence to receive sufficient means to fulfill their function (cf. BVerfGE 87, 181 [201]).

Broadcasters are in principle free decide how they fulfill their function. They determine what this constitutionally granted and statutorily delimited function demands from a communications standpoint. This the essence of the guarantee of fundamental rights embodied in Art. 5(1), second sentence. It relates primarily to programming content and form. Deciding what contents and forms are necessary, however, requires a simultaneous decision on the time needed for their realization, and thus also on the number and scope of programs. This decision, therefore, likewise is in principle protected by broadcasting freedom and as a result is primarily reserved to broadcasters (cf. BVerfGE 87, 181 [201]).

But this does not mean that programming limitations would be unconstitutional per se. Nor, conversely, would a public broadcaster's every programming decision have to be honoured. Public broadcasting in the dual system has to offer to the entire population programming that both corresponds to broadcasting's classical task and can survive in competition with private broadcasters. It has no constitutional entitlement to create programming not required by this function. Instead, collecting from viewers and listeners, who first and foremost must fund public broadcasting, is justified only to the extent necessary to fulfill the broadcasters' function (cf. BVerfGE 87, 181 [201]).

The close interrelation of programming freedom and funding, however, also forbids granting the legislature a free hand in setting the user fee. Otherwise, it could exercise unconstitutional influence on programming through funding limitations (cf. BVerfGE 74, 297 [342]). But the broadcasters are equally incapable of determining their funding framework, because they can offer no guarantee that they will always remain within the limits of their functional needs and sufficiently take into account the viewers' and listeners' concerns (cf. BVerfGE 87, 181 [202]). From this, the Federal Constitutional Court has concluded that the legislature must grant the public broadcasters funding of those programs, the creation of which not only accords with the broadcasters' specific function, but also is necessary to safeguard this function (cf. BVerfGE 74, 297 [342]; 87, 181 [202]).

This formulation strikes an appropriate balance between the broadcasters' constitutionally protected programming autonomy and the legitimate viewer and listener interests that the legislature must protect. It also allows adjustments when needed. After all, what it takes specifically to fulfill broadcasting's function depends on changing circumstances, particularly technological developments and actions of private broadcasters – against whom their public counterparts must remain competitive in order for the dual system as a whole to meet the requirements of Art. 5(1), second sentence (cf. BVerfGE 87, 181 [203]).

bb) The Federal Constitutional Court's jurisprudence has not yet made clear what measures are needed to protect broadcasting freedom from the limitations on programming autonomy threatened by the state's assessment of fees. The question presented in this case now makes an anwer unavoidable.

(1) Like the issuance of authority to broadcast and the allotment of frequencies (cf. BVerfGE 73, 118 [182 ff.]; 83, 238 [322 ff.]), funding is one of the basic prerequisites for the exercise of broadcasting freedom. Precisely because the public broadcasters' constitutional duty to shape programming is dependent on state funding, funding decisions – particularly assessment of the user fee, the broadcasters' chief source of funds – are an especially effective means of indirectly influencing both fulfillment of the broadcasting mandate and public broadcasting's competitiveness. Even a threatened use of these means can foster among public broadcasters conformity to the suspected or openly declared expectations of those who assess the user fee. Such a result would harm communications-related freedom.

These dangers to broadcasting freedom can only be met by strictly binding state funding of broadcasting to its purpose. It should place public broadcasting in a position from which it can realize the programming necessary to fulfill its function and thereby satisfy the people's basic need for broadcasting services. But it may not be used to guide programming or to implement media policy, particularly within the dual system.

This is not to say that the legislature cannot constitutionally make any decisions that affect media policy or that guide programming choices. On the contrary, even within the limits of the constitutional goals set by the Basic Law's Art. 5(1), the legislature has a broad scope of discretion, within which it may choose and combine various broadcasting forms as well as structure the chosen form in different ways. The Federal Constitutional Court has always stressed this (cf. BVerfGE 12, 205 [262]; 57, 295 [321ff.]; 83, 238 [296, 315 ff., 324]). Likewise, the legislature can, within the limits set by Art. 5(1), second sentence formulate various programming requirements for the broadcasters (cf. BVerfGE 12, 205 [263]; 57, 295 [325 ff.]; 83, 238 [316]).

To pursue such goals, however, the legislature must use the general broadcasting statutes. It has no right to pursue them by means of assessing the user fee, thereby hiding them to a certain extent in a decision on timing, scope, and duration of a fee increase. Instead, the principles of neutrality toward and dependence on programming must govern the assessment of the user fee. This must be based on the programming decisions that the public broadcasters make within the bounds of their constitutionally outlined and statutorily specified mandate, taking into account the principles of efficiency and thrift. The legislature may not stray from these decisions due to its own conceptions of appropriate programming. Nothing prevents it, however, from considering in its decision the public's financial interests and interest in access to information, which the public broadcasters cannot adequately safeguard.

(2) The principle of separation between general decisions on media policy and decisions on the user fee, however, is not by itself sufficiently effective. This is because improper considerations of the kind affecting broadcast policy or regimenting programming do not become outwardly apparent when assessing the fee. In a system of agreement among all Länder by treaty, even the head of a single government can, out of improper considerations, decidedly influence the decision, and such a defect cannot routinely be uncovered and substantiated.

Likewise, the result of the fee decision does not reflect whether it conforms to constitutional requirements or was determined by purposes that may not be pursued through the fee decision. That decision, of course, may not be made freely, but only within legal limits, and must make available to broadcasters funding of programming they need to exercise their function (cf. BVerfGE 87, 181 [202]). But this criterion is not so concrete that the user fee amount can simply be deduced from it. The exact scope of programming needed to fulfill public broadcasting's function cannot be determined, nor can the precise amount of funding that such programming requires. The same is true for the question of whether the public broadcasters, without harming their ability to fulfill their function, have nonetheless exhausted all cost-cutting and rationalizing possibilities (cf. BVerfGE 87, 181 [206]).

Genuinely more exact criteria cannot be developed, because the dilemma is structural. An external definition of the funding needed to satisfy broadcasting's function is not possible, because such fulfillment falls squarely within the broadcaster's internal sphere of freedom. Of course, it is possible to abstractly determine the function and thereby delimit the need for funding. Exact standards for figuring the necessary funding, however, would presuppose a determination of how the function is to be fulfilled. But then the fulfillment would not be the exercise of a freedom, but simply the execution of a predetermined program. Such a result would contradict the Art. 5(1), second sentence guarantee of freedom.

Under these circumstances, the usual protections against improper assertions of authority are insufficient. Aimed at subsequent control, they presuppose that legal defects can be ascertained and corrected in legal proceedings. With the user fee decision, however, this possibility is very limited. Since improper influences are, as a rule, neither uncoverable nor discernible in the result of the decision, they cannot be corrected after the fact. Therefore, the mere availability of the usual legal means to combat manifest misuses of the fee-assessment authority does not satisfy the constitutional requirement of broadcast freedom. Instead, a legal structure must be set up that begins at the danger's source and, as much as possible, prevents the possibility of unlawful assertions of authority. To this extent, the same applies for funding public broadcasting as for licensing or alloting frequencies.

Only appropriate procedural rules can provide such a legal structure. Precisely the kinds of situations described here have led to an expansion of the effects of fundamental constitutional rights to include procedural protection (cf. BVerfGE 53, 30 [65 ff.] with id. at 71 ff.; Dissenting opinion). Procedural protection of fundamental constitutional rights is especially proper where such rights cannot sufficiently fulfill their protective function. One example is when such a right cannot provide material standards for certain state actions that affect fundamental rights and, as a result, no standard exists by which the result can be adjudged. Another example is when an adjudication based on material standards is perhaps possible, but can occur only after the potential harm to a fundamental right can no longer be corrected. In both cases is it necessary to move the constitutional protection forward into the decision making process itself, and not wait to merely judge the result. State funding of broadcasting requires these procedural protections also.

2. The procedure used until now to set the user fee does not fully satisfy these requirements for procedural protection of fundamental rights.

a) It does not sufficiently secure to the public broadcasters the funding they need to fulfill their function. Nor does it effectively prevent the state from influencing their programming decisions.

aa) During the time the original procedure applied, already no more specific legal rules for setting the user fee existed. The Länder, who have legislative authority to set the fee, merely took as their starting point that public broadcasting be funded primarily by viewers and listeners via a fee that should be the same throughout Germany. Accordingly, Art. 3(1) of the 1974 Treaty Concerning the Broadcasting User Fee provided that the fee amount be set by treaty. It provided neither further criteria nor a procedure for assessing the fee. In practice, negotiation among the Länder Prime Ministers preceded conclusion of the treaty. The 1974 Treaty was enacted into Land law by a confirmatory decision in Bavaria and by formal acts of confirmation in all other Länder.

The Prime Ministers of the Länder based their decision regarding fee adjustments on findings made by the Committee to Establish the Public Broadcasters' Funding Needs ("Funding Needs Committee"). The Funding Needs Committee took as its starting point the public broadcasters' asserted funding needs, and refrained from evaluating their programming plans. But it was of the opinion that, in planning their needs, the broadcasters had to take into account the Committee's recommended funding framework. This recommendation formed the basis for the Funding Needs Committee's examination and establishment of the fee. In the Funding Needs Committee's opinion, the broadcasters' expectations and wishes for an expansion and improvement of programming, even when these remained within the bounds of the broadcasters' statutorily entrusted tasks, did not have to lead to recognition of an increased financial need. Instead, programming changes that went beyond the Funding Needs Committee's recommended funding framework were to be taken into account only on the basis of a political decision by the Prime Ministers or the Länder parliaments. The Funding Needs Committee promised, however, to figure the funding framework generously enough to prevent any influence on the content of programming choices (cf., e.g., Fifth Report of the Funding Needs Committee, 20 November 1985, p. 89).

But the Funding Needs Committee's involvement did not adequately secure broadcast freedom. We need not decide whether its composition sufficiently served its purpose of fostering objectivity, or whether it conceived of its task in a way that sufficiently respected the public broadcasters' programming freedom. Even if it satisfied these prerequisites, the entire procedure gave no guarantee that, for their part, the Prime Ministers and the Land parliaments would decide in accordance with constitutional requirements.

Despite its inclusion of independent experts, the Funding Needs Committee was created merely to aid the Conference of Prime Ministers. Its recommendations served as decisional aids for the Land governments and parliaments. The fee decision itself, however, remained a purely political decision made by the heads of the governments and the Länder parliaments. It was subject to no further substantive or procedural legal requirements. Instead, the Prime Ministers and Land parliaments had a free hand regarding both its timing and scope. Since the Länder had opted for a single fee, applicable nationwide and alterable only by treaty, the veto of a single Land could delay or prevent a decision without regard to whether a fee adjustment was necessary to maintain public broadcasting's ability to function.

bb) To this extent, the legal situation has not changed substantially. This is true although the 1987 Treaty on Broadcasting created a considerably more thorough process, which exists essentially unchanged in the currently applicable 1991 Treaty on Broadcasting in Unified Germany, and although in 1988 and 1992 the Prime Ministers restructured the Funding Needs Committee.

It is true that § 10(1) of the 1987 Treaty states that the funding is to place public broadcasting in position to fulfill its constitutional and statutory task and also is to guarantee its existence and development. Section 10(1) thereby adopts the principles governing public broadcasting's status that, under the conditions of a dual public-private broadcasting system, follow from the Basic Law's Art. 5(1), second sentence (cf. BVerfGE 73, 118 [158]; 74, 297 [324 ff.]; 83, 238 [298]; 87, 181 [199 ff.]). In addition, §§ 12(1)-(3) of the 1987 Treaty demand a high degree of objectivity and prescribe various considerations that must be taken into account when establishing the public broadcasters' funding needs. Yet these rules cannot determine with sufficient precision the funding amount that the broadcasters need to fulfill their mandate. Nor can they set the upper limit for this amount with greater precision than the standard developed in the Hessian Television Channel 3 Decision.

We need not decide whether §§ 12(1)-(3) of the 1987 Treaty actually apply to the fee decision of the Prime Ministers and the Land parliaments. Even assuming they do, they cannot solve the dilemma posed by the close interrelation of programming freedom and the state's duty to guarantee the broadcasters' existence, which is that no sufficiently concrete criteria exist for the fee decision. This is not to say that §§ 12(1)-(3) lack normative content. Rather, to the following extent they indicate where to begin establishing the public broadcasters' needs. The existing and still admissible broadcast programs may not put in question, but must serve as the starting point, so that only the competitiveness of continuing them forms the focus of inquiry (Nr. 1). Further, the costs of public broadcasting's participation in new broadcasting possibilities must be taken into account (Nr. 2). Also important are cost developments, both general and specific to broadcasting (Nr. 3), as well as changes in advertising revenues (Nr. 4).

The requirement imposed by the 1987 Treaty's § 12(2) to consider various factors, and the goal of objectivity set by § 12(3), necessarily remain within the limits of § 12's principles. But they do not so precisely make specific and tangible the criterion that governs funding that, from this, the fee amount can be simply deduced. How to establish the user fee, what parameters to base this decision on, and what weight to give the factors considered are all, within the limits set by § 12, left to the participants.

In light of this substantive legal situation, which cannot be significantly altered, the 1987 Treaty on Broadcasting has not provided the procedural safeguards needed to protect broadcasting freedom. The decision of the Prime Ministers and the Land parliaments on the fee amount is not bound by any procedure that would offer a sufficient guarantee of both suitable funding and respect for the public broadcasters' programming autonomy.

The inclusion of the Funding Needs Committee in the decisionmaking process can provide such security only to a limited extent. First, its existence remains based only on a revocable decree of the Prime Ministers. Neither its composition, its tasks, its procedures, nor even its members' independence are statutorily defined. Nor did its restructuring the committee end its status as an aid to the Prime Ministers. Therefore, we need not examine more closely whether the Funding Needs Committee's composition, as set by the Prime Ministers' decree, and its other procedures sufficiently satisfy its task of procedurally protecting freedom of broadcasting. Second, inclusion of the Funding Needs Committee cannot effectively protect this freedom so long as its recommendations in the subsequent decisionmaking process carry no corresponding weight. But under presently applicable law, Prime Ministers and Land parliaments may make or delay fee adjustments for political considerations, without it being possible to ascertain whether, in doing so, they have remained within the limits imposed by Art. 5(1), second sentence.

Changing circumstances, which might have reduced dangers to broadcast freedom, have not reduced the importance of these shortcomings. On the contrary, the dangers have increased with the founding and development of the dual system. First, public broadcasters' financial dependence on fees has risen through the competitive situation. Due to competition with private broadcasters, whom statutes allow to offer longer and more attractive advertising time, public broadcasters have lost nearly half their previous advertising revenues – an estimated 20 per cent of total revenue for ARD and 40 per cent thereof for ZDF. Due to statutory advertising restrictions, public broadcasters cannot through their own efforts counteract this development. At the same time, they must withstand major price increases, since the cost of use rights and artists' fees has jumped dramatically as a result of the competition. Second, the user fee decision has significantly gained importance for media policy since the dual system replaced public broadcasting's monopoly. It no longer determines only public broadcasting's funding framework, but now also influences their competitiveness against private challengers. This gives rise to expanded opportunities for parliaments and governments to pursue media-policy goals by way of the fee decision.

b) The procedural shortcomings described here cannot be justified by the contention that, at present, there is no alternative that takes account of broadcasting freedom better without simultaneously conflicting with other constitutional postulates. Instead, it is possible for the legislature to create procedures that secure broadcast freedom more effectively than current procedure and that are not constitutionally suspect. Under these circumstances, the legislature is obligated to introduce a constitutionally proper procedure.

Exactly how to structure the procedure for assessing the user fee is the legislature's decision. The only constitutional requirement is that the procedure ensure, first, that the public broadcasters receive the funding they need to fulfill their mandate and, second, that the user fee cannot be used to politically influence programming.

The procedure must have as its premise that the public broadcasters' programming autonomy and the state's duty to financially guarantee the broadcasters' existence are closely interrelated. Programming decisions have funding prerequisites, and funding decisions have programming consequences. This interrelation increases the chances that those who determine the funding framework can have their way. But it does not lead to the conclusion, drawn by the court below, that freedom of broadcasting can be secure only when the public broadcasters themselves have the right to assess the user fee (cf. BVerfGE 87, 181[201 ff.]). It does mean, however, that measures are needed which make effective those limits on the state's role in assessing the fee that derive from the Basic Law's Art. 5(1), second sentence. Most likely to accomplish this would be a multi-stage, cooperative procedure that is suited to the varying nature of each stage and that limits the opportunities for political influence.

The state's duty to financially guarantee the public broadcasters' existence relates to the programming needed to satisfy the broadcasters' mandate. As a matter of principle, however, only the broadcasters may say what such programming is. Therefore, the procedure cannot limit them to a passive role. Rather, their assertions of need, based on their programming decisions, must form the starting point for the establishment of their needs and the assessment of the user fee. The fee decision may not ignore programming decisions that the broadcasters have properly made within the bounds of their autonomy. Nor may it ignore those decisions' financial consequences.

This does not mean, however, that the broadcasters' asserted needs would be off limits to examination. Rather, since no market price acts as a corrective on the user fee, an external control must represent the interests of those on whom the burden of fee payment falls. This external control, however, may not judge whether the broadcasters' programming decisions are reasonable or sensible, but only the following points: First, whether those decisions remain within the legal boundaries of public broadcasting's mandate; and second, whether the funding needs derived from these decisions were established correctly and in accordance with the principles of efficiency and thrift. It thus is a professional rather than a political task.

Delegating the examination and establishment of the public broadcasters' needs to a panel of experts, as attempted already in the form of the Funding Needs Committee, corresponds especially well to the professional character of the task. If the legislature builds upon this, however, it must, in the interest of broadcasting freedom, legally define the panel's task, composition, and procedure, as well as insure the independence of its members (cf. BVerfGE 83, 130 [151 ff.]). The professional character of this step in the procedure further suggests that the panel not only should contain no broadcasting representatives, but also, unlike the Funding Needs Committee, no politicians. This would not, however, exclude members of the Länder supreme financial courts, due to their independence from both parliament and government.

From a constitutional perspective, nothing prevents use of an index-based calculation method to account for both general cost developments and those that are specific to broadcasting. The Bundesbank stated at oral argument that, although it had reservations from a standpoint of currency policy regarding an indexation of the user fee, it had none regarding an index-based calculation of certain cost factors.

The user fee decision must be based on the broadcasters' examined assertions of need. Who makes this decision, and how, requires statutory definition. The constitution merely requires that the fee decision's neutrality toward and dependence upon programming be protected. This does not exclude the possibility of deviations from the needs determination. But these may occur only for reasons that are consistent with broadcasting freedom. Such reasons do not, as we have explained, include pursuit of goals related to programming or to media policy. Essentially, aspects of information accessibility and appropriate burdening of viewers and listeners will exhaust the supply of reasons that justify deviations.

This limitation can be effectively secured, however, only if such deviations are supported by reasons that can be substantiated. A decision setting a deviating fee amount, therefore, must contain such reasons. Otherwise, it would be impossible to judicially review whether the state has fulfilled its Art. 5(1), second sentence duty to financially guarantee public broadcasting's existence. Broadcasters would then be unable to procedurally enforce a fundamental right.

It is up to the legislature to examine whether additional safeguards are necessary to ensure that fee adjustments are timely made and are neutral toward programming. It must consider especially whether the veto potential inherent in unanimous formation of treaties should be reduced in the special case of assessing the user fee. In any event, the Länder status as legally independent states would not per se prevent introduction of a quorum, unanimously agreed upon by all the Länder, for all user fee adjustments.

Since the decision assessing the user fee has legal limits and must be kept free of general concerns of media policy, the constitution does not require that the Länder parliaments themselves set the fee amounts. They could instead delegate this authority, provided the delegation were sufficiently clear and definite to comply with the rule-of-law principle, and provided a statute regulated the essential specifics. This would not disturb the reservation to parliament, which this court has always emphasized, of all fundamental decisions on media policy (cf. BVerfGE 57, 295 [320 ff.]).

3. The incompatibility of the existing fee-assessment procedure with the Basic Law's Art. 5(1), second sentence does not render it void. The normal consequence following a finding of unconstitutionality does not occur if the condition created by voiding the norm would be even less constitutional (cf. BVerfGE 83, 130 [154]; 85, 386 [401]; and citations therein). Such would be the case here. If the current regulation were voided, the legal ground for collecting the fee would disappear. Such a condition could not be corrected promptly – and indeed not at all retroactively – and would be farther removed from Art. 5(1), second sentence's requirements, because as a result even basic communication services would be endangered. The constitution obligates the Länder, however, to swiftly create a constitutionally proper regulation of broadcast funding. In the meantime, the current regulation remains valid, including for the case now before us.

III.

From the standpoint of inadmissible special levies, the charging of a "Cable Penny" did not violate the constitution. We need not decide whether the "Cable Penny" in fact satisfied the elements of a special levy (cf. BVerfGE 67, 256 [275]; 81, 156 [186 ff.]). Even if it did, no harm has been done to the constitutional interests that the Federal Constitutional Court has sought to protect through the erection of particular requirements for special levies. These requirements allow the imposition of special levies as additional burdens on individual parties only for reasons that are consistent with the principles of the constitutional federal financial order and with the precept of equality of all citizens under public burdens (cf. BVerfGE 55, 274 [303 ff.]).

1. The "Cable Penny" does not affect the constitutional federal financial order. By virtue of the Basic Law's Art. 70(1), the Länder have legislative authority over broadcasting, including authority to regulate broadcast funding. The appropriate method for funding public broadcasting is by the user fee. The federal allocation of authority in the Basic Law's Art. 104 a et seq. must be respected.

2. The Basic Law's Art. 3(1) is not infringed.

The user fee is to be collected from persons who keep a device for receiving broadcasts, and may not be from those who do not. There are objective grounds for this distinction. Regardless of how the user fee may be categorized within the system of public burdens, it in any case serves to fund broadcasting. In terms of equality, therefore, it is no objection that those who must pay are those who, by keeping an appropriate device, have made themselves able to receive broadcasts.

The same is true for the "Cable Penny". Whether this is a distinct element of the television user fee or merely another factor in adding up the total broadcasting user fee, it was in any case not for funding general state tasks, but was specifically to fund broadcasts. It served experimentation with new broadcast technologies and program forms. The possibility that experiences gained through this experimentation could spur development of a new order in broadcasting did not remove the "Cable Penny" from its association with broadcasting.

In terms of equality, it also is immaterial that the "Cable Penny" was not used within the public broadcasters' existing organizational structure. They had the opportunity to take part in pilot cable projects, likewise set up under public law, and to make use of experience gained thereby. We need not decide whether an exclusive promotion of private broadcasting with funds from the user fee would have destroyed the factual association with broadcasting that the Basic Law's Art. 3(1) requires, since no such goal is evident in those projects. The actual later use of experiences gained through them is irrelevant to an evaluation of their goals.

Finally, it is likewise no violation of equality that only a very small portion of those forced to pay the increased fee could receive broadcasts by cable. Admittedly, these broadcasts had a limited range due to their experimental character. The experiences collected in the cable projects, however, were to be used to improve broadcasting as a whole and, after the test phase, to benefit all viewers and listeners.

Judges: Herzog, Henschel, Seidl, Grimm, Söllner, Dieterich, Kühling, Seibert.

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