## Facts

- Germany’s Basic Law (GG) allocates state powers to the Länder unless the GG assigns them to the Bund (Arts. 30, 70 GG).
- After World War II, broadcasting in the Federal Republic was mainly organized through Länder public broadcasters (including ARD members) coordinated by inter‑Länder arrangements.
- The Federal Government (Adenauer) sought a second nationwide television program and pursued a federally dominated vehicle to run it.
- A private company, **Freies Fernsehen GmbH**, was founded in 1958 as part of efforts to establish a new television service; it met resistance from several Länder.
- In 1960 the Federal Government initiated the creation of **Deutschland‑Fernsehen GmbH**, structured as a corporation under private law but controlled by the Bund, with limited roles contemplated for the Länder.
- The Bund claimed constitutional support mainly from federal competence over **post and telecommunications** (Art. 73 no. 7 GG) and related federal administrative provisions (Arts. 87 ff. GG).
- The applicant Länder—**Hamburg**, joined by **Lower Saxony** and **Bremen**, and separately **Hesse**—viewed the project as a federal intrusion into Länder authority over broadcasting organization and programming and as incompatible with **Art. 5(1) GG** (freedom of broadcasting).
- The applicants brought **Bund–Länder disputes** in the Federal Constitutional Court’s original jurisdiction (Art. 93(1) no. 3 GG; docket nos. 2 BvG 1/60 and 2 BvG 2/60).
- The Court had issued interim orders in 1960 preventing the planned start of the new program pending a merits ruling.

## Issues

1. Whether the Bund had legislative or administrative competence under Art. 73 no. 7 GG (post and telecommunications) and Arts. 87 ff. GG to establish and operate a nationwide television broadcaster through Deutschland‑Fernsehen GmbH.
2. Whether, under Arts. 30 and 70 GG, broadcasting is a state task that remains with the Länder absent a specific federal grant of competence, and whether any implied federal power exists for nationwide television.
3. Whether Art. 5(1) GG requires an organizational framework for broadcasting that prevents one‑sided state control of public opinion and secures participation of relevant social forces in broadcaster governance and programming.
4. Whether the Federal Government’s negotiation and implementation strategy toward the Länder violated the constitutional principle of **bundesfreundliches Verhalten / Bundestreue** (federal comity).

## Decision

- The Court held that the Bund **lacked competence** to establish and operate **Deutschland‑Fernsehen GmbH** as planned; the project was **incompatible with the Basic Law**.
- The Court ruled that Art. 73 no. 7 GG (post and telecommunications) supports, at most, federal authority over the **technical transmission** side of broadcasting, not the establishment of a broadcaster, its governance, or program responsibility.
- The Court rejected arguments for an implied federal power based on the nationwide character of television or the Bund’s general role in representing the Federal Republic.
- The Court held that **Art. 5(1) GG** has organizational consequences for broadcasting: television is a major instrument—and not merely a channel—of public opinion formation, so broadcasting must not be placed under one‑sided state control.
- The Court stated that broadcasters must be organized so that relevant societal forces can exert influence in their organs and be represented in the overall program, and that binding program principles are required to secure a minimum level of balance, objectivity, and mutual respect.
- The Court held that these organizational and program requirements must be secured **by generally binding law**, and that a federally controlled television company conflicted with these constitutional demands.
- The Court found that the Federal Government’s approach to securing Länder participation breached **federal comity**, condemning divide‑and‑rule tactics in matters where all Länder have equal constitutional status and are collectively concerned.

## Legal Principles

- Federal competence must be **expressly conferred** by the Basic Law; in cases of doubt there is **no presumption** in favor of Bund authority (Arts. 30, 70 GG).
- The federal power over post and telecommunications (Art. 73 no. 7 GG) covers **technical communications infrastructure and transmission**, not editorial responsibility, programming, or the institutional design of broadcasting entities.
- **Art. 5(1) GG (freedom of broadcasting)** is not limited to protecting individual speakers; it also requires a legal broadcasting order that prevents the mass medium from being handed over to the state or to a single social group.
- Broadcasting bodies must be structured to allow **plural participation** in governance and to ensure that relevant forces can appear in the overall program.
- Binding program guidelines must secure at least a **minimum** of balance, objectivity, and mutual respect, and these safeguards must be made **generally binding by statute**.
- The constitutional principle of **Bundestreue / bundesfreundliches Verhalten** governs both outcomes and conduct in federal relations; the Bund may not pressure or split Länder when seeking arrangements in constitutional matters affecting all Länder.

## Conclusion

BVerfGE 12, 205 invalidated the Federal Government’s attempt to create a second nationwide television service through Deutschland‑Fernsehen GmbH, holding that the Bund’s telecommunications powers reach only technical transmission and that responsibility for broadcasting remains primarily with the Länder absent a clear federal grant; the Court also treated Art. 5(1) GG as requiring a legally secured, pluralistic broadcasting order free from one‑sided state control, and it condemned divide‑and‑rule tactics as contrary to federal comity.


Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], Feb. 28, 1961, 12 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 205 (F.R.G.)