German Constitutional Court strengthens independence of PSM from the State
08 April 2014In its judgment of 25 March 2014, the German Federal Constitutional Court held that the ZDF Inter-State Treaty needs to be amended to improve the public service broadcaster's independence from the State.
Applications before the Constitutional Court were brought by the governments of two German Länder after the Administrative Council (an internal supervisory body of ZDF) refused in 2009, allegedly for purely political reasons, to approve ZDF Director General's proposal to renew the contract of Editor-in-chief Nikolaus Brender. The applicants criticized excessive State influence in the supervisory bodies.
The Court held that the fundamental freedom of broadcasting demands that the institutional set-up of public broadcasting organisations be guided by the principle of pluralism, and that the proportion of members of supervisory bodies who are State representatives or closely linked to the State be strictly limited.
According to the Court, the ZDF Treaty, in its current form, only partly lives up to this standard. The Länder now have until 30 June 2015 to adopt the necessary amendments to the ZDF Inter-State Treaty.
The Court identified four areas where improvements are needed:
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The number of representatives of the State or close to the State must not exceed one third of the total membership in each of the two supervisory bodies of ZDF, the Fernsehrat (Television Council) and Verwaltungsrat (Administrative Council). The current composition of these bodies does not respect this ceiling, with over 40% of members falling in this category which consists of members of government, members of parliament, political appointees, elected officials, and holders of responsible functions in political parties.
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The pluralistic composition of the supervisory bodies must be ensured. Within the first category, i.e. representatives of the State or close to the State, the composition must also reflect diverse perspectives (e.g. from a federal/regional, political and gender point of view). Regarding the second category, i.e. representatives of civil society who are detached from State authority, the executive must not exercise any determining influence on their selection or appointment, and the legislator must take effective measures to ensure pluralism in the representation of relevant groups of society, also taking into account new and smaller groupings and perspectives, thus counteracting a dominance of majority perspectives. Moreover, the legislator must introduce incompatibility rules to ensure that members in this category are effectively independent from the State and from political parties on a personal level.
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Independence of all members of the supervisory bodies in the exercise of their functions must be reinforced by ensuring that they are not bound by instructions and that they can only be dismissed for important reasons.
- The legislator must also ensure a minimum of transparency for the work of the supervisory bodies, so that the public can follow their work, in particular by receiving substantial information on the subject matters and the results of deliberations.
The Court also took the opportunity to confirm its existing case law addressing the important role and broad remit of public service media within a dual broadcasting system, notably in light of new technological and market developments.