Constitutional complaint by ard and zdf: good chances in karlsruhe

The public broadcasters want to enforce the broadcasting fee of 18.36 euros at the Federal Constitutional Court. This could work.

The public broadcasters (pictured here: WDR, ZDF, ARD) insist on their money Photo: Thomas Frey/imagebroker

Actually, the fee increase was supposed to be brought about politically. Because media policy is a state matter, the 16 states had to reach an agreement. In June, they concluded a corresponding state treaty, which provided for an increase in the broadcasting fee from the current 17.50 euros per month to 18.36 euros in the future. However, this agreement must be approved by all state parliaments by the end of the year, otherwise it will become "invalid," as a clause in the agreement states.

As a result, it does not matter whether the state parliament of Saxony-Anhalt does not vote at all – as is now planned – or whether it explicitly votes against the contribution increase. Without its approval, the old broadcasting fee of 17.50 euros will remain in place.

However, the public broadcasters now want to go to Karlsruhe. They want to argue there that they are entitled to the contribution increase because its level was recommended by the independent Commission to Determine the Financial Needs of the Broadcasting Corporations (KEF).

In fact, in a landmark ruling in 1994, the German Constitutional Court established a three-step process for broadcasting funding. First, the broadcasters are to state their needs. Then the KEF examines whether these needs are in line with the programming mandate and comply with the principle of economy. Third, politicians are then fundamentally bound by the KEF’s recommendation.

Politics should not be able to exert too much influence

Deviations are possible for social reasons, so as not to overburden citizens, according to Karlsruhe. Under no circumstances, however, should broadcasting funding be used for purposes of program control and media policy (as determined the discussion in Saxony-Anhalt). Any deviation from the KEF recommendation must also be justified in detail and can be reviewed by the Federal Constitutional Court.

Karlsruhe showed that it is serious about its requirements in 2007, when, following a complaint by the broadcasters, the court found that the state premiers had violated the rights of ARD and Co. At that time, the states had jointly reduced the KEF increase proposal from "plus 1.09 euros" to "plus 88 cents."

Among other things, the states had cited the "strained economic situation" as justification. At the time, the First Senate of the Federal Constitutional Court left open whether this was sufficient, because in any case the other reasons did not meet the requirements. The states had argued that there was more potential for savings and more revenue opportunities than KEF had seen. However, the judges did not consider this to be sufficiently substantiated. The judges did not accept media policy justifications, such as consideration for private TV stations.

If you compare the precedent with today’s Saxony-Anhalt case, two things are striking: Back then, all the states were in agreement; this time, only one state deviates. At the time, there were detailed reasons; this time, there can be no official reasons at all due to the lack of a resolution.

It is therefore unlikely that the Federal Constitutional Court will accept a situation in which one federal state alone, and without justification, prevents the increase in contributions for the whole of Germany that KEF considers necessary. The broadcaster’s lawsuit therefore has good prospects. With an urgent application, it might even be possible to start the increase in contributions as early as January or February.

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