The state government of Rhineland-Palatinate questions the independence of the German PSB broadcaster ‘Zweites Deutsches Fernsehen’
Τhe government of Rhineland-Palatinate lodged by the end of December 2010 an application with the German Federal Constitutional Court to scrutinise the constitutionality of the governing structure of the public service broadcaster (PSB) ‘Zweites Deutsches Fernsehen’ (ZDF). ZDF operates nationwide and is one of the most important TV channels in the country. The government of Rhineland-Palatinate in its application contests the composition of ZDF’s Television Council and Administrative Council. It argues that state representatives in both bodies have an undue influence on the operator.
The main governing bodies of the German PSBs are the Broadcasting Councils (for ZDF, the Television Council), the Administrative Councils and the Director. In principle, PSBs shall be free of undue state influence. As it is said by the Federal Constitutional Court, the state is responsible to establish the legal framework for a functioning PSB, while at the same time the state has to refrain from steering it. This is rooted in the developments that followed the end of World War II, when the Allied Forces espoused the idea of establishing a broadcasting system that would be independent from the state. At the core of such a system lies the assumption that the control of public service broadcasting should principally be in the hands of representative social groups. State legislation created a public service broadcasting system in which broadcasting organisations operate with internal co-regulation bodies: the Broadcasting Council and the Administrative Council. The majority of the members of the Broadcasting Councils are generally representatives of the different societal groups of Germany. The composition of the Broadcasting Councils aims to ensure a plurality of opinions as well as independence from the state. It also ensures the representation of the interests of the society at large.
The Director is responsible for PSBs’ daily work and programmes, while the Broadcasting Council elects the Director, adopts basic programme guidelines and controls whether the PSB adheres to statutory law. The Administrative Council is mainly responsible for the supervision of the financial activities of the PSB. Given the discretionary powers that the governing bodies enjoy, state representatives and political parties are interested in forming part of them. In general, the societal groups hold the majority in the Councils, but state representatives and political parties in particular, are generally not excluded from them.
The Federal Constitutional Court has ruled that broadcasting must not be subject to the influence of one single societal group or the state. However, no strict constitutional interpretation exists as to the exact quorum of state representatives in the governing bodies. It is estimated that participation of more than one third of government representatives may have a negative effect on the operator in terms of undue influence on the programmes or on the senior positions and can be thus deemed unconstitutional. Currently, 34 of the 77 members of the ZDF Television Council are representatives of governments, political parties, or of community structures (i.e. cities). In other words, 44% of the Council are state representatives. Furthermore, most of the societal representatives that participate in the Television Council are not delegated by the societal groups independently, but are instead appointed by the heads of the state governments. ZDF’s Administrative Council is composed of 14 members, 6 of which are state representatives.
The aforementioned composition of both ZDF’s governing bodies has created problems. According to the ZDF-Interstate Treaty, the Administrative Council has to participate in all procedures concerning the taking of decisions on important issues, such as the election of the senior programme manager or the chief editor. Appointments to these senior journalistic positions require the consent of the Administrative Council on proposal of the Director. Recently, the Administrative Council of ZDF decided against the re-election of the former chief editor of ZDF and refused to give its consent regarding the proposal of the ZDF Director. The necessary quorum in the Administrative Council was not reached and it is legitimately assumed that this happened because some members in the Council did not want to vote for the proposed candidate out of political reasons. This case prompted the most renowned experts of German media and constitutional law to publish an open letter to all members of the Administrative Council of the ZDF, arguing that the election procedure does not fulfil constitutional requirements.
The current application of the state government of Rhineland-Palatinate does not contest the Council’s basic composition of state and non-state representatives in general. It questions its partition and seeks to reduce the places in the Councils that are foreseen for state representatives. Depending on the outcome of this case, the judgment of the German Federal Constitutional Court could establish some more precise rules concerning the composition of the Broadcasting Councils and the role that state representatives and political parties play in them.
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