The Legal Mandate of Public Service Broadcasting and European Competition Law

The Hans-Bredow-Institut studies the compatibility of financing of public service broadcasting through mandatory user fees with European law.

The discussion about the legal mandate of public service broadcasters takes place both at the national and the European level. By now, broadcasting is classified almost without controversy as a service in terms of European primary legislation. This brings up the question of whether the financing of public service broadcasters through mandatory user fees and the goal of free competition are compatible. As this question is primarily framed from an economic perspective and therefore differs from a view that instead emphasises the constitutional goal of free speech, conflicts are inevitable. Legally, the question is whether the broadcasting fee qualifies as a so-called "state-aid" in terms of the EC treaty and - if this is the case - to what extent exceptions apply to the activities of public service broadcasters so that under certain conditions state aid may be compatible with the common market.

For some time Germany, among other member states, has interpreted the treaty differently than the European Commission with regards to the classification of their funding systems. In a letter from early 2005, the Directorate-General Competition suggested that, in its opinion, there needed to be a more detailed definition of what exactly is comprised by the mandate of public service broadcasters in certain areas and therefore open to financing by broadcasting fees. These areas include, for instance, online activities and the digital television services. In the case of the commercial activities of public service broadcasters and of their relations to subsidiary companies, the Commission criticises a lack of transparency.

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Project Description

On behalf of the Friedrich-Ebert-Foundation, the Hans-Bredow-Institut analysed to what extent the financing of online services by fees conforms to European law in 2004. In doing so, the institute drew among other things on the obligation of considerateness, as stipulated in the EC treaty. This obligation requires EU institutions to respect the fundamental constitutional norms of the member states, such as the independence of broadcasters from any state interference in Germany. The report negated that the German broadcasting fees qualify as "state aid" and analysed primarily the effects of the normative communal loyalty (Gemeinschaftstreue) stipulated in the EC treaty on the interpretation of the norms on state aid. According to the study, European law allows a functional design of the mission of public service broadcasters so that the mission can be adjusted when the importance of services for public communication (e.g. due to increased usage of online services) changes.

Based on this work, the institute and individual staff members support the development of the so called Beihilfekompromiss, which led to the change of legal regulations on the assignment of public-service broadcasting in the 12th Amendment to the Interstate Broadcasting Treaties, as well as the current discussions about the first three-step-tests by ARD and ZDF, with academic expertise.