The ARD and ZDF want to impose a higher license fee through a constitutional challenge which, according to a leading media lawyer, could even succeed. But this could be a win with a downside for broadcasters.
Media lawyer Wolfgang Schulz gives a good chance of success to the constitutional appeal of the ARD and ZDF against the increase in the television license fee. “If states do not implement the KEF proposal without constitutionally valid justification, it is almost certain that the complaint will succeed,” Schulz said. However, it cannot be ruled out that the court will take advantage of the opportunity to make fundamental observations on the broadcasting system which are not in the interests of the broadcasters. “It is not without risk for ARD and ZDF to take this path,” said Schulz, director of the Leibniz Institute for Media Research in Hamburg.
ZDF and ARD lodged an appeal against the TV license increase at the Federal Constitutional Court in Karlsruhe on Tuesday. The independent commission for the assessment of the financial needs of broadcasters (KEF) had recommended an increase in the broadcasting fee by 58 cents to 18.94 euros per month by the end of the year. The heads of government of the federal Länder agreed in October on the reform of public broadcasting, but postponed the decision on the future radio and television license to the next meeting on 12 December in Berlin. Media policy can only deviate from the KEF recommendation under strictly defined conditions.
Schulz said it is to be expected that the institutions will file a constitutional challenge. “In reality they cannot do anything else, because they have a legal mandate to fulfill, which they can only implement with sufficient financial resources. The states have agreed on measures in a state reform treaty that can lead to savings in the middle.” term. However, it is very unlikely that these measures will come into force so soon that the rent will not have to be adjusted immediately. “In this regard, the institutions have no choice but to turn to Karlsruhe.”
Timing is more of a tactical issue than a legal one. “The institutions apparently assume that the lawsuit will increase pressure on states to reach an agreement, it remains to be seen.” “It may be that the fronts harden and those who doubt the institutions’ willingness to save money and who may not care about constitutional limits feel empowered until the Federal Constitutional Court has made a decision, generally it needs to be done.” it is possible to withdraw a constitutional appeal as a whole or even individual appeals. “I can imagine this will happen if countries can find a solution,” Schulz said.
State leaders must first agree on changes to contributions, then the signed contracts must be approved by all state legislatures. In this last stage, the process failed in 2020. The broadcast license fee was supposed to increase by 86 cents to 18.36 euros on January 1, 2021. 15 regional parliaments have ratified the corresponding state media amendment treaty, only the Saxony-Anhalt’s regional parliament did not vote in December 2020 and therefore initially canceled the increase recommended by the KEF. ARD, ZDF and Deutschlandradio successfully defended themselves with legal actions before the Federal Constitutional Court, which ultimately ordered the increase in summer 2021.
Brosda: Adequately finance broadcasters
Hamburg Senator for Culture and Media Carsten Brosda (SPD) recently spoke out in favor of adequate funding of public broadcasters. “We are essentially talking about the democratic infrastructure of our country, not just some savings,” Brosda told the “Frankfurter Allgemeine Zeitung”. The federal states must give public broadcasting “the opportunity to develop and fulfill its democratic task”.
Brosda said the goal is a process that forces broadcasters to fulfill their mission more effectively. Furthermore, the procedure for determining contributions, on which all 16 regional parliaments had to agree after the ratification of a state treaty by the heads of government of the federal states, should be simplified. “Proposals are being developed that will transform previously explicit consent into an opt-out regulation. “You could also work with quorums so that a single country cannot block the determination of contributions,” Brosda said.
What are the implications of the Federal Constitutional Court’s decision on ARD and ZDF’s funding?
Interview Between Time.news Editor and Media Lawyer Wolfgang Schulz
Editor (E): Welcome, Wolfgang Schulz! It’s great to have you with us today to discuss the recent developments concerning the ARD and ZDF’s appeal against the proposed increase in the television license fee.
Schulz (S): Thank you for having me. It’s an important topic that affects many viewers and the broadcasters themselves.
E: Let’s start with the basics. ARD and ZDF are pushing for this increase, which the KEF recommends raising the fee to 18.94 euros per month. What prompted them to take this case to the Federal Constitutional Court?
S: Well, the primary reason is that the broadcasters are mandated legally to provide services that require adequate funding. The current license fee seems insufficient to meet their operational needs. However, to realize such an increase, they require substantial justification if the states decide not to comply with the KEF’s recommendation.
E: You mentioned that there is a strong possibility of this constitutional appeal succeeding. What do you base that optimism on?
S: The constitutional framework mandates that if the states do not have a constitutional justification for deviating from the KEF’s recommendation, the complaint is likely to succeed. They are in a tight corner because financial resources are essential for fulfilling their service obligations.
E: However, you also noted that there is a potential “downside” for broadcasters. Can you explain what you mean by that?
S: Absolutely. While a successful appeal may allow ARD and ZDF to secure the increased funding they seek, the court could take this opportunity to make broader comments on the broadcasting system. This could include stipulations that may not be favorable to the interests of the broadcasters. In other words, they might win the case but could lose some degree of operational flexibility in the process.
E: That sounds quite precarious. Given the tensions among the states regarding funding and operational reforms, what do you predict will happen next?
S: The situation is indeed delicate. The leaders of the federal states will need to reach a consensus on the contribution changes before any contracts can be finalized. Time is of the essence as agreements made now could stave off a larger constitutional entanglement later on. However, if the states disregard the KEF’s recommendations, they might embolden those criticizing the broadcasters, complicating the situation further.
E: You touched on timing being more of a tactical issue than a legal one. Can you expand on that?
S: Yes, the timing of the appeal seems to be aimed at applying pressure on the states. By taking this legal pathway, ARD and ZDF may cause the states to reconsider their positions urgently. However, if the states find common ground in discussions, it’s entirely possible to withdraw the appeal, whether entirely or in parts. It will depend on how negotiations progress in the coming weeks.
E: It seems like we’re at a pivotal juncture for public broadcasting in Germany. If the states don’t align themselves soon, how might that impact the general public?
S: If the appeal leads to a significant court decision, it could reshape public broadcasting financing in Germany. If funding issues persist without resolution, it could jeopardize the range and quality of services provided by ARD and ZDF, impacting millions of viewers. Conversely, a streamlined agreement could stabilize funding and secure services in the long run.
E: Thank you, Wolfgang Schulz, for your insights today! It’s an evolving story, and we appreciate your perspectives on the legal and political implications behind these developments.
S: Thank you for having me. I look forward to seeing how this situation unfolds.