2. Broadcasting judgment - 2. Rundfunk-Urteil

The 2nd broadcast judgment of the Federal Constitutional Court of July 27, 1971 ( reference: BVerfGE 31, 314 - sales tax ) describes the second in a series of judgments of the Federal Constitutional Court on freedom of broadcasting in German law . The judgment stipulated that public broadcasters were able to exercise their fundamental rights and are exempt from sales tax.


In the course of the introduction of the German sales tax , the Sales Tax Act of May 29, 1967 stipulated that public broadcasters are "commercial or professional" within the meaning of tax law and therefore have to pay sales tax of five percent on the income from broadcasting fees .

The state of Hesse then turned to the Federal Constitutional Court as part of an abstract review of norms , since it considered this regulation to be unconstitutional. In addition, all German broadcasters, with the exception of the broadcaster Free Berlin, lodged a constitutional complaint because they felt that their fundamental rights had been violated.

Summary of the judgment

First of all, the Federal Constitutional Court ruled that the broadcasters' constitutional complaints are admissible. The fundamental rights do not apply to legal entities under public law, but in exceptional cases they can lodge a constitutional complaint if they are directly affected by a violation of the freedom of broadcasting.

The contested paragraph in the Value Added Tax Act is unlawful because the federal government according to Art. 105 (2) GG a. F. has no legislative competence in this area. Public broadcasting is not a commercial enterprise, but a matter for the general public, which must be operated in full independence and kept free from any influence. According to Art. 105 para. 2 GG a. F. the federal government has competing legislation in the case of "consumption and transport taxes", but this presupposes actual economic action, which is not the case in the case of broadcasters.

For the reasons

S. 21-22: "According to Article 19.3 of the Basic Law, the fundamental rights also apply to domestic legal persons insofar as they are essentially applicable to them. However, they do not apply in principle to legal persons under public law insofar as they perform public tasks They are not entitled to the legal remedy of the constitutional complaint. Something else applies if, as an exception, the legal person concerned under public law is directly assigned to the area of ​​life protected by the fundamental rights Assert violation of their fundamental right to freedom of broadcasting. "
P. 33: "Broadcasting is" a matter for the general public ". It must be operated in full independence, bipartisan and kept free from any influence. The performances should" convey news and comments, entertainment, education and instruction, worship and edification and promote peace, serve freedom and international understanding ". The various ideological, scientific and artistic directions must be taken into account."
P. 38: "The broadcasting corporations have a public responsibility and, by performing public administration tasks, they also fulfill integrating functions for the whole of the state. Their broadcasting activities are not of a commercial nature."
P. 46: "If, however, as the legal development confirms, the sales tax legislative competence from Art. 105 (2) GG old version is limited by the fact that only a private exchange of services may be taxed, then the federal legislature cannot apply this barrier through a" as "break through. He has thus left the area of ​​sales tax law and also the system of the Sales Tax Act 1967. He tried to introduce a sales tax with the help of a fiction that is not compatible with an inherent factuality of the concept of sales tax implicitly adopted by the constitutional legislature, and a Competency claimed that he does not have on the basis of Art. 105 (2) GG old version. "

Consequences of the judgment

With this ruling, the Federal Constitutional Court paved the way for a number of further broadcasting rulings in which broadcasters saw their fundamental right to freedom of broadcasting violated as part of a constitutional complaint.