Broadcasting Contribution: Unconstitutional only in case of "gross misconduct"

Is the broadcasting contribution unconstitutional if public service broadcasting does not fulfill its mandate? The Federal Administrative Court has now made a fundamental decision on this (Ref.: BVerwG 6 C 5.24). It sets the bar for unconstitutionality very high: there would have to be serious failures by the broadcasters over a longer period of time before the broadcasting contribution could be considered unconstitutional.

A plaintiff from Bavaria had argued that public service broadcasters are not fulfilling their mandate because the program is neither balanced nor diverse. She had already failed with this argument before the Munich Administrative Court. The judges of the Federal Administrative Court also see no reciprocal link between the contribution obligation and the fulfillment of the functional mandate in the Broadcasting Contribution State Treaty. The plaintiff therefore cannot assert alleged deficits in the program of public service broadcasters against the contribution obligation, the Federal Administrative Court announced. The Federal Constitutional Court had already decided in 2018 that the advantage balanced by the collection of the broadcasting contribution lies in the possibility of being able to use public service broadcasting.

The bar is high

The judges at the Federal Administrative Court now also reaffirm that the contribution obligation is not linked to the fulfillment of the broadcasting mandate in the Media State Treaty. The constitutional justification for the contribution obligation can only be called into question if the overall program of public service broadcasters “grossly fails to meet the requirements for diversity of opinion and balance in reporting over a longer period of time.” However, the threshold for this is high, the federal administrative judges decided.

“It must consider the wide scope of discretion of the legislator in shaping a contribution obligation and therefore presuppose a gross disproportion between the burden of contributions and the quality of the program. Furthermore, it is difficult to determine whether the required representation of diversity of opinion and its balanced presentation in the overall program offering is actually achieved.” In principle, diversity and balance are a target value that can never be fully achieved.

Dispute goes back to Munich

The dispute over the broadcasting contribution could continue to occupy the courts: the Federal Administrative Court referred the plaintiff back to the lower instance, the Administrative Court of Appeal (VGH) in Munich. There she has the opportunity to prove her claims. She must demonstrate “a gross disproportion between the burden of contributions and the quality of the program,” the judges write. To examine this, a period of at least two years must be considered. Scientific expert opinions must provide “sufficient indications of evident and regular deficits” in the program.

If the VGH in Munich comes to the conclusion on this basis that the broadcasting contribution is unconstitutional, the contribution obligation must be submitted to the Federal Constitutional Court for review again. “However, based on the factual allegations to date, it currently appears extremely doubtful whether the plaintiff will be able to achieve a referral to the Federal Constitutional Court,” said the presiding judge at the Federal Administrative Court, Ingo Kraft, according to dpa.

(dahe)