- BVerfGE 59, 231 1 BvR 848, 1047/77; 916, 1307/78; 350/79; 475, 902, 965, 1177, 1238 and 1461/80 WDR/Freie Mitarbeiter-decision "Freelance Broadcasting Employees Case"
- 13 January 1982
- Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner
- © Nomos Verlagsgesellschaft
The constitutional protection of freedom of broadcasting, which is guar-anteed by art. 5(1), second sentence, Basic Law within the limits of the general laws (art. 5(2) Basic Law), extends to the right of public broadcasting companies to take into account the mandate of variety in broadcast programming also with regard to the selection, hiring and employment of those broadcasting employees taking part in the structuring of programming. This must be observed by the courts when deciding whether the legal relationships between the public broadcasting companies and their employees working in the area of programming are to be considered permanent employment relationships.
Order of the First Panel of 13 January 1982 -- 1 BvR 848, 1047/77, 916, 1307/78, 350/79 and 475, 902, 965, 1177, 1238, 1461/80 --
in the proceedings on the constitutional complaints of the Westdeustchen Rundfunk in Cologne, a public-law corporation, represented by Director Friedrich-Wilhelm von Sell, Appellhofplatz 1, Cologne 1 -- agent: Professor Dr. Fritz Ossenbühl, Im Wingert 12, Meckenheim
1. a) the judgment of the Federal Labor Court of 22 June 1977 -- 5 AZR 134/76 --, b) the judgment of the Federal Labor Court of 22 June 1977 -- 5 AZR 498/76 -- 1 BvR 848/77 --;
2. the judgment of the Federal Labor Court of 22 June 1977 -- 5 753/75 -- 1 BvR 1047/77 --;
3. a) the judgment of the Düsseldorf State Labor Court -- 3 d Chamber of Cologne -- of 22 June 1979 -- 3 Sa 112/76 --, b) the judgment of the Federal Labor Court of 15 March 1978 -- 5 AZR 818/76 -- 1 BvR 916/78 --;
4. the judgment of the Federal Labor Court of 20 September 1978 -- 5 AZR 1101/77 -- 1 BvR 1307/78 --;
5. the judgment of the Federal Labor Court of 13 December 1978 -- 5 AZR 487/77 -- 1 BvR 350/79 --;
6. the judgment of the Federal Labor Court of 12 December 1979 -- 5 AZR 1102/77 -- 1 BvR 475/80 --;
7. the judgment of the Federal Labor Court of 23 April 1980 -- 5 AZR 426/79 -- 1 BvR 902/80 --;
8. the judgment of the Federal Labor Court of 7 May 1980 -- 5 AZR 593/78 -- 1 BvR 965/80 --;
9. the judgment of the Federal Labor Court of 16 July 1980 -- 5 AZR 339/78 -- 1 BvR 1177/80 --;
10. the judgment of the Düsseldorf State Labor Court of 9 September 1980 -- 19 Sa 102/80 -- 1 BvR 1238/80 --;
11. the judgment of the Düsseldorf State Labor Court of 27 October 1980 -- 22 (19) Sa 400/770 -- 1 BvR 1461/80 --.
1. The judgments of the Federal Labor Court of 22 June 1977 (5 AZR 134/76, 5 AZR 498/76, 5 AZR 753/75), of 20 September 1978 (5 AZR 1101/77), of 13 December 1978 (5 AZR 487/77), of 12 December 1979 (5 AZR 1102/77), of 23 April 1980 (5 AZR 426/79), and of 16 July 1980 (5 AZR 339/78) violate article 5(1), second sentence, of the Basic Law. They are hereby quashed. The matters are referred back to the Federal Labor Court.
2. The judgment of the Düsseldorf State Labor Court of 22 June 1978 (3 Sa 112/76) and the judgment of the Federal Labor Court of 15 March 1978 (5 AZR 818/76) violate article 5(2), second sentence, of the Basic Law. They are hereby quashed. The matter is referred back to the Federal Labor Court.
3. The Federal Republic of Germany shall reimburse the necessary expenses to the Complainant.
1. The judgments of the Düsseldorf State Labor Court of 9 September 1980 (19 Sa 102/80) and of 27 October 1980 (22 (19) Sa 400/77) violate article 5(1), second sentence, of the Basic Law. They are hereby quashed. The matters are referred back to the Düsseldorf State Labor Court.
2. The State of North Rhine-Westphalia shall reimburse the necessary expenses to the Complainant.
III. The constitutional complaint against the judgment of the Federal Labor Court of 7 May 1980 (5 AZR 593/78) is hereby rejected.
EXTRACT FROM GROUNDS:
Subject of the constitutional complaints, which have been joined for common decision, is the question of the meaning attributable to art. 5(1), second sentence, Basic Law (freedom of broadcasting) for the standards of the case law of labor courts, according to which the employees of a public broadcasting company retained as «free-lance employees» are classified as permanent employees.
1. According to the provisions of the Civil Code dealing with services contracts (§§ 611 ff.), the party pledging the services is obligated to render the services promised, and the other party, to render the agreed compensation (§ 611(1)). The subject of the services contract can be services of any kind (§ 611(2)). Services contracts may in principle be of limited duration; if such a limitation is agreed, then the services relationship ends with the expiration of the period for which the relationship is entered into (§ 620(1)). Other than this, there is the possibility of termination with notice pursuant to §§ 621 and 622 (§ 620(2)).
2. The law of services contracts distinguishes between two basic types of services contracts: the «independent» or «autonomous» services contract versus the agreement on an employment relationship (employment contract); in accordance with consistent labor-court practice, the latter is involved when the party obligated to render the services is «personally dependent» on the party entitled to receive the services. The classification of a services relationship as an employment relationship has considerable legal consequences: it leads to the application of special provisions going far beyond the protective rules of the Civil Code; these include not only provisions dealing with protection against termination (Termination Protection Act [Kündigungsschutzgesetz; KSchG], in the version of the Proclamation of 25 August 1969 [BGBl. I, p. 1317], most recently amended by the Act of 27 April 1978 [BGBl. I, p. 550]) but also those of collective bargaining law (cf., in particular, the Collective Bargaining Act [Tarifvertragsgesetz; TVG], in the version of 25 August 1969 [BGBl. I, p. 1323], amended by the Homework Amending Act of 29 October 1974 [BGBl. I, p. 2879]), employees' representation law or -- for public service employers -- staff representation law and finally work protection law. Occupation under an employment relationship also normally establishes a mandatory insurance relationship in the various branches of social insurance.
Under § 1(1) KSchG, the termination with notice of an employment relationship that has existed for more than six months is legally invalid when it is «socially unjustified» (this term is defined in detail in § 1(2) and (3) KSchG). In order to avoid a circumvention of these mandatory provisions of termination protection, the labor courts have further placed considerable limitations on the possibility -- provided for under § 620(1) of the Civil Code -- of establishing employment relationships of limited duration; even the one-time and, above all, the repeated limiting of employment relationships (chain employment contracts) is only valid when there is a materially justifiable reason for this.
1. The public broadcasting companies in the Federal Republic of Germany employ, in addition to permanently employed workers, numerous «free-lance assistants», who do not have the status of employees and thus also do not enjoy protection against termination under labor law. Permanently employed assistants are, in the area of programming, mainly charged with the planning and direction of production. The circle of persons retained as free-lance assistants is composed of the most diverse of individuals. This includes authors and composers, who are not or only hardly integrated into the company's day-to-day production processes; the reporters, who, in the journalistic-editorial field, commonly work in a team together with others; the producers of documentaries, feature films and other programming contributions; the directors, actors, speakers and presentors; the cameramen and studio directors, who are assigned to the production field; makeup and wardrobe artists and editors; and the more sales-organizationally active production heads, recording heads and props workers. The activities of free-lance assistants widely overlap with those that are performed in the same or similar manner by permanent employees. Also, the intensity of the occupation of free-lance assistants is extremely varied: the spectrum here ranges from occasional need or recurring use to full demands on workpower with widescale integration into the company.
The institution of free-lance assistance is viewed by the public broadcasting companies as a basic condition for fulfilling their task of offering variety in programming and comprehensive information and, at the same time, maintaining the highest possible standard of programming. They feel that the use of free-lance assistants makes it possible for the broadcast programs to depict a considerably broader field of political, economic, scientific or artistic life, of sports or of entertainment than would be capable with an unchanging, fixed staff of assistants. The companies further believe that this also enables changing needs to be catered to. It is also said to offer the companies the chance to draw upon a greater wealth of fantasy, resourcefulness, expertise and abilities and thus to offer qualitatively better programs.
If this is assumed to be the case, then this also presupposes a not insignificant degree of flexibility and fluctuation in the personnel sector: The companies cannot in the long term be tied to each and every assistant. With regard to the assistants enlisted only in isolated cases, this does not give rise to any legal problems. The situation is, however, different with free-lance assistants who are repeatedly called upon for services that are also rendered in similar fashion by permanent employees -- i.e., with the circle of «standing free-lance assistants», who are the subject of the present constitutional complaints. According to data supplied by the Working Group of Public Broadcasting Companies in the Federal Republic of Germany (Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland; ARD), a total of 20,532 persons were permanently employed at their public broadcasting companies in 1978. Of these, 3,854 assistants worked in the program formation field, e.g., as editors, reporters and directors. In the same year, these were accompanied by some 83,000 -- taking into account the Second German Television channel (Zweites Deutsches Fernsehen; ZDF), roughly 90,000 -- free-lance assitants, with whom some 800,000 contracts were concluded. Of these, the number of standing free-lance assistants with an annual income of more than DM 16,800 totalled 2,273 persons, those with an annual income of DM 6,000 to DM 16,800, 5,517 persons.
2. Up until the early 1970s, the legal status of standing free-lance assistants had given little cause for dispute. Since then, however, increasing efforts began to be made to improve the security of free-lance assistants in both the area of social insurance and in that of labor law. Numerous free-lance assistants sought with the aid of the courts to achieve the recognition that when they were repeatedly called upon to render services to a public broadcasting company, this gave rise to an employment relationship subject to the protection against termination under labor law. These efforts were to a great extent successful. In many cases, the Federal Labor Court found for the complainant in actions for declaration of the existence of an employment relationship (subject to the protection against termination). This had the result that the number of permanent employment actions continued to grow; for instance, in the area of the ARD, some 550 actions have been brought since 1974, of which roughly 450 were successful.
The public broadcasting companies -- in particular, those of the ARD -- have drawn wide-ranging consequences from this case law for the employment of free-lance assistants: with every contrast with a free-lance assistant, it is reviewed whether there is a danger of permanent employment. This is only not the case when either only (sporadic) employment for a fews days a month is planned on the basis of isolated agreements or when this deals with individual projects with a total duration of not more than five months per year. In addition to the personnel decisions called for by production and editorial requirements, also coming into play is thus the deliberation of which assistant can be enlisted for certain tasks with the lowest legal risk.
The public broadcasting companies are concerned that this development will, at least in the long run, have detrimental effects for programs, since this will unavoidably impede a change or renewal, but particularly the full use, of the journalistic and creative talent potential inherent in free-lance assistance, which is fundamentally important for the fulfillment of the functions of broadcasting and the quality of the programs.
On the other hand, trade unions and free-lance assistants who seek permanent employment refer to the necessity of social security for standing free-lance assistants as well. This requirement is generally recognized today. This is, for instance, served by the inclusion of standing free-lance assistants as «sporadically occupied employees» (cf. § 441 RVO; BSGE 36, 262 [265 f.]) in the social insurance system (with the exception of unemployment insurance), which was supplemented by the broadcasting companies with pension funds. With the insertion of a § 12 a in the Collective Bargaining Act in 1974, the possibility was created for the conclusion of collective bargaining contracts by employee-like persons as well; in so doing, the legislature had particularly aimed also at the situation of free-lance broadcasting assistants. All broadcasting companies have since concluded such collective bargaining agreements, such that the social security of this circle of persons was able to be improved. But continuing to be problematic is the protection of positions under labor law; this is particularly so in those areas where (as in North Rhine-Westphalia) the termination of an employee requires, pursuant to the relevant staff representation law, the consent of the staff committee.
1. Complainant is the Westdeutsche Rundfunk (Western German Public Broadcasting Company) -- a public-law corporation -- in Cologne; the Plaintiffs in the original proceedings have or had all long worked for the Complainant, which retained them as free-lance assistants.
a) The Plaintiff in the original proceedings to constitutional complaint 1 a) had since 1962 worked nearly without interruption for the Complainant as television director; he was in charge of several series. For the program «Hier und Heute» («Here and Now»), he worked as production assistant every eight weeks for 14 days each time; during this period, he each time had to be in the studio from late afternoon until the end of the program. The situation was the same for the program «Spektrum», which was broadcast every other Sunday. In addition, the Plaintiff served as director for in-house productions by the Complainant. On the average, he worked a total of 16 to 18 work days per month for eight hours each day. The start and end of the work day, as well as the course of events during it, were set by the Complainant, which also stipulated the length of time and the resources allotted for producing the programs; in particular, the Plaintiff was required to work together with permanent employees of the Complainant. For his supervision of the program «Spektrum», the Plaintiff received fixed remuneration fees; otherwise, his work was each time subsequently compensated according to a bill of services, on which he confirmed that he had worked as a free-lance assistant. His average annual income from the Complainant totalled roughly DM 43,000.
[(In the following sections b-h and k-m, the similarly structured activities of the Plaintiffs in the original proceedings 1b-7 and 9-11 are each described in detail. All of them worked at various times in the field of television or radio as directors, editors, moderators, script writers . . ..)]
i) The Plaintiff in the original proceedings to constitutional complaint 8), who is a violinist, worked since the fall of 1973 in the Complainant's orchestra. At first, she was only called upon on occasion; but beginning in May 1975, her occupation became more intensive. After passing her final examination in art at the Public College of Music, she applied for a permanent position with the Complainant. She was thereupon invited to an audition. On the day planned for this, she was ill, and the orchestra did not endorse her. A second audition was called off following the first round of auditions for all applicants; a narrowed-down selection did not take place. Nevertheless, the Plaintiff continued to receive work from the Complainant. Between January 1976 and January 1977, she rendered her services on at least 158 occasions; permanently employed musicians in the entertainment orchestra, on the other hand, were only required to perform 233 times during the same period. Each performance in the orchestra by the Plaintiff was compensated individually, with her average monthly income amounting to roughly DM 2,500. The Plaintiff was not invited to a third audition in February 1977; since then, she has also no longer received work.
2. The Plaintiffs in the original proceedings resorted to litigation before the labor courts, seeking the declaration that a permanent employment relationship had been established between them and the Complainant. They were successful in these actions: in the original proceedings to constitutional complaints 1 a), 1 b), 2) and 4) to 9), the Federal Labor Court either found for the Plaintiffs in the declaration actions or upheld the declarations pronounced by the lower tribunals. The situation is similar with the original proceedings to constitutional complaints 3), 10) and 11); here, the State Labor Court held -- in the case of the proceedings on 3) and 11), after the matters had been referred back to it by the Federal Labor Court -- in favor of the Plaintiffs. With regard to the appeal resubmitted on the original proceedings to constitutional complaint 3), a decision has not yet been reached.
The grounds for the decisions of the labor courts can basically be summarized as follows:
In the majority of the decisions, it was initially determined that there was an on-going legal relationship between the Complainant and the respective Plaintiff, such that the sole issue was the evaluation of the personal status. Controlling for the latter was held to be the practical implementation and structuring of the contractual relationships by the parties, from which might result, despite express contrary declarations by the parties, that an employment relationship had been established. This was said to be the case when the assistant was personally dependent on the broadcasting company.
On the basis of this criterion, the employment relationship must be delineated from the legal relationship of a free-lance assistant; in undertaking this delineation, use was made in the attacked decisions of a number of indicative points -- although variously accorded different weights -- that have been developed in the case law of the labor courts, particularly the Federal Labor Court: ... (elaboration by the Court)
With the constitutional complaints, the Complainant alleges a violation of the basic rights under art. 5(1), second sentence, art. 9(3) and art. 2(1) Basic Law.
1. The constitutional complaints are asserted to be admissible. The Complainant further states that it is authorized to bring the cause. ... (elaboration by the Court)
2. In the matter, the Complainant relies on the expert opinion of law by Prof. Dr. Ossenbühl «Legal Problems of Free-Lance Assistance in Broadcasting» (see Beiträge zum Rundfunkrecht, issue 17, 1978), who in essence argues as follows:
The central problem in the instant cases is to harmonize the social protection of free-lance assistants with the personnel requirements in the programming area of broadcasting. The Complainant has never called into question the need for the social protection of free-lance assistants but rather, on the contrary, has -- particularly in recent years -- made substantial performances to develop social protection.
Prof. Dr. Ossenbühl further states that the case law of the Federal Labor Court, which ignores this and has drastic consequences for the Complainant's personnel planning, can only be explained in that the Federal Labor Court has failed to take into consideration the significance of freedom of broadcasting for the problematic at issue. Moreover, the attacked case law is said to be no longer predictable, since the criteria on which it is based lack any prognostic value whatsoever. This case law is primarily alleged to violate art. 5(1), first sentence, Basic Law: ... (elaboration by the Court)
1. Submitting comments on the constitutional complaints are: the Plaintiffs in the original proceedings to constitutional complaints 2), 8) and 9); the Radio, Television and Film Union in the Trade Union of the Arts (Rundfunk-Fernseh-Film-Union in der Gewerkschaft Kunst; RFFU); the German Journalists Association (Deutsche Journalisten-Verband, e.V.; DJV); and the ARD and ZDF.
2. a) The Plaintiffs in the above-mentioned proceedings defend the attacked decisions. ... (elaboration by the Court)
b) The RFFU and the DJV also defend the decisions of the labor courts attacked with the constitutional complaints. ... (elaboration by the Court)
3. On the other hand, the ARD and the ZDF support the constitutional complaints. Both of them join in the expert opinion by Professor Dr. Ossenbühl.
a) The ARD states that the case law of the Federal Labor Court entails substantial inroads into the two-track personnel concept of their companies. This case law is said to be based on a mistaken understanding of the scope of protection of freedom of broadcasting, thus leading indirectly to serious damages. ... (explanation by the Court)
b) The comments by the ZDF take the same direction. ... (elaboration by the Court)
The constitutional complaints are admissible to the extent that the Complainant asserts a violation of art. 5(1), second sentence, Basic Law.
The Complainant is a broadcasting company organized as a juridical person of public law. Under art. 19(3) Basic Law, basic rights are also valid for domestic juridical persons, insofar as their substance is applicable to them. This is in essence not the case for juridical persons of public law (BVerfGE 21, 362 [369 ff.]). However, there is an exception to this rule when the juridical person of public law can be directly included within the area of life protected by the basic right (BVerfGE, id. at 373). The Federal Constitutional Court has accordingly recognized that public broadcasting companies are able to assert a violation of freedom of broadcasting by way of the constitutional complaint, since their status as self-administered corporations of public law independent of the State serves in the realization of this basic right (BVerfGE 31, 314 ).
To the extent that the Complainant in addition asserts a violation of the basic rights under art. 9(3) and art. 2(1) Basic Law, the constitutional complaints are on the contrary inadmissible; in this regard, an exception to the above-described principle does not come under consideration. This continues to apply even when the Complainant's capacity as employer entitled to conclude collective bargaining contracts is taken into account. An extension of basic-rights capacity to those juridical persons of public law no longer covered by the purpose of safeguarding areas of freedom of which they are specifically a part would essentially no longer be compatible with the primary sense of basic rights, i.e., ensuring that the individual is protected against interference by public authority. This might lead to the situation where basic rights are given reverse effect; such is particularly the case when basic-rights protection in favor of public authorities threatens to become a protection against citizens -- as is sought by the Complainant in the instant cases, even though the constitutional complaints are in form aimed directly at court decisions. This result is not changed by the fact that in the interest of the fulfillment of their functions, the broadcasting companies have been largely removed from State influence (cf. BVerfGE 12, 205 ): This «liberty from the State» finds its sole basis in the constitutionally guaranteed freedom of broadcasting (art. 5(1), second sentence, Basic Law). An extension of broadcasting companies' basic-rights capacity to other basic rights cannot be inferred from this.
The admissibility of constitutional complaint 3) is not opposed by the fact that in the original proceedings to this constitutional complaint, all remedies have not yet been exhausted (cf. § 90(2) BVerfGG). ... (elaboration by the Court)
The constitutional complaints 1) to 7) and 9) to 11) are justified. The judicial decisions attacked with these constitutional complaints violate art. 5(1), second sentence, Basic Law. Constitutional complaint 8) is not justified.
The constitutional complaints are directed against court decisions in the field of labor law. The interpretation and application of the provisions and principles of this legal field as such are not to be reviewed by the Federal Constitutional Court. Its province is merely the control of whether the courts violate constitutional law in the interpretation and application of simple law, particularly whether they have failed to recognize the effect that basic rights have on the norms and standards of simple law (cf., e.g., BVerfGE 18, 85 ; BVerfGE 42, 143 [147 ff.]; BVerfGE 49, 304 [314 ff.]). However, the instant cases give no reason for the Federal Constitutional Court to undertake an intensified review (cf. BVerfGE 41, 143 [148 f.]).
Nevertheless, the courts in the original proceedings did not simply «apply» -- in a broad sense -- simple law. By defining the constituitive features of an employment relationship, they themselves first developed the standards under which they then reached their decisions. To this extent, it is not possible to refer per se to an application of law in the customary sense. The standards are to viewed as a type of judge-made law; thus, they in essence resemble a normative regulation and, from this point of view, may not be subjected to any other control than to one with this end. In so doing, however, it still must be kept in mind that requirements of freedom of broadcasting that might be placed on a legal regulation can be satisfied in a number of ways: If the legislature had sought to enact this, its freedom of discretion would by no means place greater limitations on the scope of control by the Federal Constitutional Court than the interpretation and application of simple law encumbent upon the specialized courts. Therefore, here as well the described scope of review should be sufficient. The Federal Constitutional Court is not empowered to mark out detailed approaches to a solution and in this manner to take the place of the specialized courts.
The standard of review is art. 5(1), second sentence, Basic Law. The constitutional protection of freedom of broadcasting guaranteed by this basic right within the limits of the «general laws» (art. 5(2) Basic Law) extends to the right of existing broadcasting companies to take into account their task of ensuring variety in the contents of broadcast programming also when selecting, hiring and employing broadcasting assistants.
1. a) Freedom of broadcasting serves to guarantee the free formation of individual and public opinion (BVerfGE 57, 295 [319 f.]). This is accomplished in a communicative process, in which broadcasting plays the part of a «medium» and «factor»: It is charged with providing information as widely and completely as possible; it provides both the individual and societal groups with the opportunity to participate in the formation of opinion and itself takes part in the process of formation of opinion (cf. BVerfGE 35, 202 ). This transpires in a comprehensive sense; formation of opinion is accomplished not only through news programs, political commentary or series on political problems of the present, past or future but also to the same extent through radio and television dramas, musical presentations or entertainment programs. Through the selection and structuring of the programs, every broadcaster's programming will exhibit a certain direction, including with regard to the decision on what can be ignored without damage to the formation of public opinion and how that which is broadcast is to be formed and spoken (cf. BVerfGE 12, 205 ; BVerfGE 31, 314 ; BVerfGE 35, 202 [222 f.]).
Accordingly, the protection of freedom of broadcasting constitutionally guaranteed by art. 5(1), second sentence, Basic Law basically covers every program (BVerfGE 35, 202 ): Most importantly here, freedom of broadcasting initially means freedom of programming in the sense of a prohibition of both State as well as any alien influence on the selection, contents and structuring of programming. Within the scope of the broadcasting system as it now exists -- which seeks to conform to the mandate that it reflect the variety of opinion and provide comprehensive information above all through an internally pluralistic organization of each broadcasting company -- this freedom does not, of course, mean unrestricted freedom of acticity in this professional sphere. In this regard, the requirements of freedom of broadcasting differ from those of freedom of the press, which also comprises the freedom to define and implement a newspaper's basic direction without being influenced (BVerfGE 52, 283 ): Broadcasting companies may not pursue one particular direction in their overall programming but rather must in principle afford space to all directions.
b) It is true that the safeguarding of this function of broadcasting is alone served by the guiding principles regarding the contents of overall programming and the requirements going to the organizational structure of broadcasting companies (cf. BVerfGE 12, 205 [262 f.]; BVerfGE 57, 295 [325 f.]). However, this cannot guarantee much more than a «minimum of substantive balance, objectivity and mutual respect» (BVerfGE, id.). A pallet of programming paying regard to the mandated variety cannot be guaranteed solely with legal requirements on contents or organizational rules; it also, if not primarily, presumes that the programs are structured by persons who are capable of introducing the mandated variety into the programming. To the same extent, activity, liveliness, inventiveness, objectivity, fairness and artistic sophistication -- in short, everything constituting the quality of broadcasting programs -- are just as unable to be dictated or regulated by law. Rather, the fulfillment of the function of broadcasting is dependent on the fact that the companies are able to establish and then maintain the requisite personnel underpinnings. This can become problematic (and thereby, all the more important) when -- for instance, as a result of a given global political development -- new information needs arise while others wither, when the public's interest turns to new subjects and away from others, or when, in relation to this, programming structures have to be changed, i.e., when the need for a shifting emerges. It is up to the broadcasting companies to satisfy these and similar requirements of their programming mandate by resorting to assistants qualified for the respective task. They would be incapable of doing so if they were solely reliant on standing, permanent assistants, who would unavoidably be unable to reflect and structure the entire variety in the program contents to be transmitted. Therefore, they must be able to draw upon a wide spectrum of suitable assistants, which in turn can presuppose that these assistants will not be employed for a long duration but only for the period in which they are needed.
If the requirement of variety in programming that is placed upon broadcasting companies is thus essentially contingent on personnel underpinnings, then the companies may respond to measures that seek to interfere with or even abolish these prerequisites by relying on freedom of broadcasting in its meaning as freedom of programming. If the selection, contents and structuring of programming is protected against alien influence, then this must also apply to the selection, hiring and employment of personnel, on which all structuring is dependent. The obligation on broadcasting companies to create and then maintain the personnel underpinnings required for variety in programming is linked -- outwardly -- to the right to decide on the selection, hiring and employment of broadcasting assistants free from alien, particularly State influence. This right is covered by the constitutional guarantee of freedom of broadcasting.
In light of the context as set forth above, this basic-rights protection of the decision as to broadcasting personnel is restricted to the circle of broadcasting assistants who participate in the structuring of the contents of radio and television programs. This especially applies when these individuals introduce into the programs their own views on political, economic, artistic or other specialized issues, their expertise and information or their individual artistic talent or expressiveness, as is, for instance, typically the case with directors, moderators, commentators, scientists and artists. To this extent, the protection of freedom of broadcasting covers, as subject to the limits to be discussed in the following, not only the selection of assistants but also the decision as to whether assistants are to be permanently employed or whether, for reasons of program planning, they are to be retained for a restricted duration or for a certain project and how often an assistant is needed. This also includes the power to choose the appropriate type of contract respectively needed in establishing a legal relationship with an assistant.
The constitutional protection afforded by art. 5(1), second sentence, Basic Law does not, on the other hand, cover the personnel decisions of broadcasting companies that are unrelated to the above-described context. This is particularly the case when the decisions have to do with assistants who do not participate directly in the structuring of the contents of programs. This includes not only operational and administrative personnel but also those assistants whose activities, while connected with the realization of programming, solely deal with putting this into effect technically and have no influence whatsoever on its contents.
2. Insofar as the protection of art. 5(1), second sentence, Basic Law accordingly covers personnel decisions by broadcasting companies, the specific reach of this basic right here can only be determined when its limits are taken into consideration.
a) These limits do not follow directly from the Constitution.
aa) This first applies to the basic rights of assistants that collide with the basic right of broadcasting companies, which therefore might make necessary a balancing of the two positions.
Under this approach, one must, in the first place, take into account a basic-rights position of broadcasting assistants that would likewise result from art. 5(1), second sentence, Basic Law and have the effect of placing a constitutional commitment on broadcasting companies. For instance, in a landmark decision of 15 March 1978 (5 AZR 819/76), which was not attacked with a constitutional complaint, the Federal Labor Court took the view that reasons of freedom of broadcasting call for the legal safeguarding of the workplace, since the assistants who structure programming are often only then certain to have true freedom of expression; an assistant's «intellectual freedom» is said to be «constrained by fear for his economic livelihood» (Federal Labor Court, EzA § 611 of the Civil Code, employee term No. 17 = RdA 1978, p. 266 ). This is based, though implicitly, on the view that broadcasting assistants were likewise able to rely on art. 5(1), second sentence, Basic Law when this is related to the context controlling here. Nevertheless, the question of whether this is the case, as well as what would be the specific reach of such a right of assistants, does not require a decision: In no event can it be inferred from art. 5(1), second sentence, Basic Law that there is a direct, constitutional claim to be retained not as a free-lance assistant but in a permanent employment relationship, even though permanent employment might very well provide the assistant with a greater degree of independence and thus support journalistic or artistic freedom and self-responsibility in structuring contributions to programming.
One must also take into account the basic right of assistants to the free choice and practice of their profession (art. 12(1) Basic Law). Nevertheless, this basic right as well does not contain a binding constitutional requirement to offer broadcasting assistants permanent employment. Although the manner in which individuals are employed influences to a not inconsiderable extent the conditions under which they exercise their basic right to freedom of profession, this being of significance for all social classes (BVerfGE 7, 377 [397, 398 f.]), this circumstance is only to be taken into account in connection with commitments that must be specified by the legislature (cf. BVerfGE 50, 290 ). To this extent, it is of significance here for the balancing of freedom of broadcasting with the legal values protected by the «general laws» (art. 5(2) Basic Law) (see infra 3). A direct constitutional limitation on freedom of broadcasting is likewise not contained in art. 12(1) Basic Law.
bb) The same applies to the principle of the social State (arts. 20(1) and 28(1) Basic Law). The Complainant's view that this principle occupies a competitive yet equal rank with freedom of broadcasting, making it of utmost importance to resolve this legal deadlock by bringing these two principles into conformity with one another, cannot be followed by the Court.
This principle of the social State may certainly be of importance for the interpretation of basic rights, as well as for the interpretation and constitutional evaluation of laws that restrict basic rights pursuant to a proviso of law. It is, however, not capable of limiting basic rights in the absence of specification by the legislature, i.e., directly. It places a duty on the State to provide for a just social order (cf., e.g., BVerfGE 5, 85 ; BVerfGE 22, 180 ; BVerfGE 27, 253 ; BVerfGE 35, 202 [235 f.]); in fulfilling this duty, the legislature is endowed with a broad margin of discretion (BVerfGE 18, 257 ; BVerfGE 29, 221 ). In other words, the principle of the social State sets a task for the State but does not say anything as to how this task is to be accomplished in detail -- in any other case, the principle would come into conflict with the principle of democracy: the democratic order established by the Basic Law would, as the system of a free, political process, be decisively restricted and curtailed if political decision making were to be made subject to a constitutional obligation that could only be met in a specific, stipulated manner. Due to this openness, the principle of the social State cannot erect any direct limitations on basic rights. On a question involving a restriction on freedom of the press as a result of co-determination by the employees' council in a press company, the Federal Constitutional Court accordingly held that a limitation on freedom of the press by the Constitution itself presupposes a binding mandate contained in the principle of the social State, but which cannot be inferred from this principle (BVerfGE 52, 283 ). The result can be no different for freedom of broadcasting: a direct limitation by the principle of the social State would presuppose that with regard to the question of to what extent public broadcasting companies must retain «free-lance assistants» as employees, the principle contains a specific, binding mandate. This is not the case.
b) Thus, the only conceivable limitations on freedom of broadcasting as understood here are «general laws» in the sense of art. 5(2) Basic Law, i.e., laws that are directed not against a certain opinion but rather that serve to safeguard a legal value to be protected in any case and without regard for a certain opinion (BVerfGE 7, 198 [209 f.]; BVerfGE 28, 175 [185 f.]). These include both the provisions of the Civil Code on services contracts and those of labor law, i.e., the Termination Protection Act, for instance. These types of provisions are capable of limiting freedom of broadcasting.
In the original proceedings underlying the constitutional complaints, it might of course seem doubtful whether any «general laws» whatsoever were applied, since the courts merely determined here that the prerequisites for the application of the provisions of labor law had been met -- namely, the attribute as employee. The standards for these decisions were not taken from any law but instead developed from case law, which is prohibited from undertaking a direct restriction on basic rights. It would, however, be too narrow to conclude from this that the right of public broadcasting companies to decide freely on the selection, hiring and employment of assistants is not subject to any limitation pursuant to art. 5(2) Basic Law as long as the term «employee» has not been defined by statute (cf. BVerfGE 52, 283 . In those areas in which the legislature has described only generally the circle of persons to whom a law is to apply, it is one of the functions of the courts to decide on the question of the applicability of the law. This decision is «application» of the law in a broader sense; the commitment resulting from this must therefore be considered to be one of law, in this case, a commitment on the general laws. It is therefore irrelevant whether a rule coming about as a result of judge-made law is a «general law» within the meaning of art. 5(2) Basic Law (cf. BVerfGE 34, 269 ).
3. For the constitutional evaluation of the issues to be decided here, consideration must accordingly be given both to freedom of broadcasting as characterized above and to the limitations placed on this freedom by «general laws». As set forth in the foregoing, the principle of the social State and the basic right in art. 12(1) Basic Law are of importance in determining the reach of these limitations (see supra 2 a). The boundaries thus resulting from art. 5(1), second sentence, Basic Law must be seen in light of the basic right of freedom of broadcasting; these are, in turn, to be interpreted in awareness of the significance of this basic right in the free, democratic State, such that their limiting effect on the basic right is itself to be restricted (BVerfGE 7, 198 [208 f.]; consistent holdings). Thus required is a balancing under the Constitution of freedom of broadcasting as protected by art. 5(1), second sentence, Basic Law with the legal values protected by the provisions to be applied here as «general laws»: The restriction on art. 5(1), second sentence, Basic Law -- whose constitutionally legitimate objective is the granting of protected status under labor law -- must be both appropriate and necessary for giving effect to the assistants' social need for protection; the success it is to achieve must stand in a reasonable relationship to the drawbacks entailed by this restriction for freedom of broadcasting.
a) This constitutional situation first rules out any undifferentiated solution, which simply sacrifices the protection of one legal value for the protection of the other. On the one hand, broadcasting assistants working in the structuring of programming may not in general be denied protected status under labor law; on the other, in deciding on this protection, the rules and standards of labor law may not be applied to the contractual relations of these assistants in such a way as to ignore the constitutionally protected right of the companies to decide on the selection, hiring and employment of these assistants free of alien influence.
b) Furthermore, respect must be paid to the high rank enjoyed by the basic rights of art. 5(1) Basic Law. Just as with freedom of expression, of information and of the press, freedom of broadcasting also plays a fundamentally constituitive role for the basic democratic order (BVerfGE 35, 202 [221 f.]. with further references). Although the protected status afforded by labor law, which limits the basic right of freedom of broadcasting under art. 5(2) Basic Law, serves in the realization of the principle of the social State as a constitutional principle -- it ensures the professional position of those assistants enjoying this protected status and thus their constitutionally guaranteed freedom of profession (art. 12(1) Basic Law) -- it must also be taken into consideration that the protected status under labor law is only available to permanently employed workers; the more the public broadcasting companies are required to retain workers in a permanent employment relationship, the less able they are to effect a change, and this means that protected status gives rise to blocking effects, thereby worsening the chances for those individuals who would like to take up work in the broadcasting field, particularly for younger persons, who would otherwise be able to find work and income, albeit without permanent employment. These effects can hardly be in the sense of the principle of the social State, which calls for the realization of a socially just order for all, i.e., particularly obligates that provision also be made for those who have no job and are looking for one. Moreover, it is made considerably more difficult for those belonging to this circle to make use of their basic right to free choice of profession.
In light of the constitutional aspects of social protection, the application of the rules and standards of labor law to broadcasting assistants thus proves to be double-sided. In addition, it harbors the danger that in the broadcasting field, the entire spectrum of variety cannot be reflected and structured in the contents of the programs to be broadcast; should this situation arise, then this must necessarily spell a corresponding loss in information for listeners and viewers. If these drawbacks are thus set against that which can be attained for broadcasting assistants with the application of the «general laws», then it becomes clear that these drawbacks can be disproportional and therefore incompatible with the Basic Law; this does not even take into account the limitations placed by freedom of broadcasting on the «general laws». It follows from this and from the special significance of freedom of broadcasting that in balancing the constitutionally legitimate objective of affording protected status under labor law with freedom of broadcasting, the latter is to be attributed greater weight. This must be taken into consideration in forming the standards and in making the decision in the given case.
c) It is actually a matter for the legislature to enact a regulation that, paying regard to these constitutional requirements and guidelines, gives effect to the concerns of all those involved and affected. But as long as such a regulation is lacking, it is the task of the responsible specialized courts to balance freedom of broadcasting with the constitutionally legitimate, protective objectives of labor law in the given case. The Federal Constitutional Court is essentially unable to substitute this with its own rule; as explained above, it is prohibited from itself drawing the boundary between full- or part-time occupation in an employment relationship and free-lance assistance (see supra I).
In interpreting and applying labor law, the courts must give effect to the above-described constitutional requirements resulting from art. 5(1) and (2) Basic Law. This does not absolutely preclude them from resorting to characteristics of dependent work generally developed for this legal field and, if these indicate the existence of an employment relationship, from paying regard to the influence of freedom of broadcasting by discounting various characteristics arguing in favor of limited employment. Although the criteria controlling for the finding of a permanent employment relationship are then on the whole to be evaluated differently for broadcasting workers than otherwise, this modification is nevertheless conditioned and limited by the constitutional situation. It cannot be extended to other legal provisions serving the social protection of workers, particularly to those of social insurance law. Regulations dealing with, for instance, retirement income or protection in case of illness do not restrict the decision-making freedom of public broadcasting companies regarding the selection, hiring and employment of assistants working in the structuring of programming. On the other hand, these are also not affected by art. 5(1), second sentence, Basic Law, such that this guarantee does not preclude, for instance, broadcasting assistant relationships from being evaluated as dependent occupation (§ 7(1) SGB IV). Constitutional law does not demand a choice between all (the full protection of permanent employment) or nothing (no social protection whatsoever). Rather, it only stands in the way of labor-law rules and case law that would deprive public broadcasting companies of the liberty and flexibility needed to fulfill their programming mandate. As far as can be seen, this only applies to the case of a judicial declaration of a permanent employment relationship, with the possibility of limited employment contracts not being ruled out.
The decisions attacked with the constitutional complaints 1) to 7) and 9) to 11) failed to recognize the effects that the basic right of freedom of broadcasting has on the requirements taken as a basis for the declaration of a permanent employment relationship of broadcasting assistants. They therefore violate art. 5(1), second sentence, Basic Law.
1. The application of labor law by the courts does not sufficiently satisfy the requirements of freedom of broadcasting. In the decision by the Federal Labor Court of 12 December 1979 attacked with constitutional complaint 6), freedom of broadcasting is treated briefly, whereas several of the other attacked decisions contain a general reference to the decision (not attacked) of 15 March 1978 -- 5 AZR 819/76 -- (EzA § 611 of the Civil Code, employee term No. 17 = RdA 1978, pp. 266 ff.). However, even when this is taken as an indication for the fact that art. 5(1), second sentence, Basic Law was not entirely disregarded, the significance of freedom of broadcasting for the evaluation of the cases at issue nevertheless went unrecognized.
In the controlling decision by the Federal Labor Court of 15 March 1978, with which the comments in the decision of 12 December 1979, as far as relevant here, coincide, it is recognized that freedom of broadcasting encompasses the free decision as to the content of programming and that this is in part also a problem of personnel. This is contrasted with protected status under labor law as an expression of the constitutional principle of the social State. The Federal Labor Court held that the two constitutional doctrines had to be conformed with one another. However, this could not, it said, be accomplished by eliminating protected status but rather only within the framework of protected status. In addition, the Court stated that the legal safeguarding of the workplace for all assistants taking part in the structuring of programming was required -- in balanced form -- especially for reasons of freedom of broadcasting as well.
As set forth above, a direct, constitutional claim to permanent employment cannot be inferred from the basic right of freedom of broadcasting (see supra II 2 a); thus, it also cannot require the corresponding legal safeguarding of the workplace. Since the Federal Labor Court only seeks to attribute importance to freedom of broadcasting within the framework of protected status, it apparently assumes that the basic right is irrelevant for the decision on worker status and only comes into play in the event of termination; freedom of broadcasting is held to be of importance here to the extent that it is to be taken into consideration within the framework of the balancing of interests called for in the event of ordinary termination under § 1(2) of the Termination Protection Act or in the case of extraordinary termination under § 626(1) of the Civil Code (cf. also Hilger, Rundfunkfreiheit und «freie Mitarbeiter», RdA 1981, p. 265 ).
Such an attempt to give effect to the requirements of freedom of broadcasting by making it easier to terminate permanently employed workers would lead to objectionable results. That which is to be provided to assistants with the declaration of a permanent employment relationship -- the safeguarding of their workplace -- might be taken away from them in the same breath if they could, for reasons of freedom of broadcasting, not be denied permanent employment yet nevertheless terminated. It may, however, be left aside whether the required compensation could be achieved in this fashion, since it is constitutionally impermissible to limit the effects of freedom of broadcasting to the case of termination. The right of public broadcasting companies to decide free of alien influence on the selection, hiring and employment of assistants is not first impaired by the impediment to termination but rather by the declaration that the complaining assistant has a permanent employment relationship with the company despite the contract concluded between the parties. Thus, the influence of freedom of broadcasting makes itself known even at the early stage in which the courts were required to decide in each case.
Since the courts failed to recognize this constitutional situation, these also did not interpret and apply labor law «in light of» art. 5(1), second sentence, Basic Law. Accordingly, there was no review whatsoever of whether the standards under which they reached their decision of permanent employment were compatible with the requirements of the Constitution. Particularly lacking was a consideration of the proportionality of the instrument of permanent employment. The result is an unreasonable assessment of the standards and viewpoints resorted to in reaching a decision. The judgments therefore lead not to a proportional balancing between the concerns of the public broadcasting companies and the social concerns of the assistants but rather to one-sided consideration of the latter.
2. The decisions attacked with constitutional complaints 1) to 7) and 9) to 11) are based on these errors: It cannot be ruled out that the courts would have reached a different result had they recognized and taken into account the constitutional reach of freedom of broadcasting for the issues to be decided.
Such consideration was called for in the original proceedings to these constitutional complaints. The Plaintiffs worked during the respectively controlling periods in the field of television or radio in areas requiring their participation in the structuring of the contents of the Complainant's programs. Although with respect to the Plaintiff in the original proceedings to constitutional complaint 4), this may seem somewhat dubious as regards his activities as moderator, this nevertheless at any rate presupposed autonomous participation in the structuring of the programs. The same applies to the Plaintiff in the original proceedings to constitutional complaint 11). Even though as reporter he received relatively specific tasks, he was basically at liberty in implementing these, such that the content of each programming contribution was largely determined by him.
Insofar as some Plaintiffs in the original proceedings had received a not inconsiderable amount of work over long periods of time, it may very well be that the Federal Labor Court would have rejected the appeals even had it taken into account the above-described constitutional requirements; such a situation may be an indication of the fact that the broadcasting company saw no need for a change, whereas, on the other hand, the social need for protection of such assistants will rise over time. To this extent as well, the possibility of a different decision cannot be ruled out.
The decisions attacked in the above-mentioned constitutional complaints are therefore to be quashed. The matters are, pursuant to § 95(2) BVerfGG, to be referred back to the courts that issued the decisions. A special result is reached for the original proceedings to constitutional complaint 3): Here, the matter was referred back by the Federal Labor Court to the State Labor Court, which then only had to rule on the question of whether the Plaintiff had forfeited the right to claim a permanent employment relationship, since the Federal Labor Court had already held in the decision referring the matter back that the prerequisites had been fulfilled for the declaration of a permanent employment relationship. Since for this decision, it is of primary importance whether the requirements of freedom of broadcasting are observed, the matter is referred back to the Federal Labor Court. The appeal submitted by the Complainant to the decision of the State Labor Court is hereby nugatory.
The decision of the Federal Labor Court attacked with constitutional complaint 8) does not violate the Complainant's basic right under art. 5(1), second sentence, Basic Law.
In the original proceedings to this constitutional complaint, it was not required that the influence of the constitutionally guaranteed freedom of broadcasting be observed in the interpretation and application of the rules and standards of labor law. In contrast to the other cases dealt with above, the Plaintiff, as violinist without predominant position, cannot be counted among the assistants directly active in the area of structuring programming (cf. supra II 1 b). Although the artistic level of a music performance is also important for the content of programs, those directly responsible for this can only be deemed, in addition to soloists, the members of the orchestra with leading functions. The Federal Labor Court was therefore able to base its decision solely on the rules and standards of labor law. The constitutional complaint is therefore unfounded.
Judges: Dr. Benda, Dr. Böhmer, Dr. Simon, Dr. Faller, Dr. Hesse, Dr. Katzenstein, Dr. Niemeyer, Dr. Heußner.
Dissenting Opinion by Justice Heußner to the Grounds for the Order of the First Panel of 13 January 1982 -- 1 BvR 848/77, et al. --
The comments by the majority of the Panel on the principle of the social State (supra C II 3 b) may lead to misunderstandings.
1. The majority states that it must also be taken into consideration that protected status under labor law is only available to permanently employed workers. In addition, it notes:
The more the public broadcasting companies are required to retain workers in a permanent employment relationship, the less able they are to effect a change, and this means that protected status gives rise to blocking effects, thereby worsening the chances for those individuals who would like to take up work in the broadcasting field, particularly for younger persons, who would otherwise be able to find work and income, albeit without permanent employment. These effects can hardly be in the sense of the principle of the social State, which calls for the realization of a socially just order for all, i.e., particularly obligates that provision also be made for those who have no job and are looking for one. ... In light of the constitutional aspects of social protection, the application of the rules and standards of labor law to broadcasting assistants thus proves to be double-sided.
2. The remarks by the majority of the Panel cannot support the result reached; they merely contain a statement on social policy that is immaterial for the decision.
The majority overlooks that the sole issue is whether with respect to the interplay between freedom of broadcasting and the «general laws» within the meaning of art. 5(2) Basic Law, the protected status under labor law must give way to freedom of broadcasting. Only in this framework was freedom of broadcasting to be balanced against protected status, which is constitutionally legitimated by art. 12(1) Basic Law and the principle of the social State. In so doing, the question is irrelevant whether protective labor laws, particularly regulations on protected status, can also have the effect of excluding those persons from working in the broadcasting field who view this as the fulfillment of their function in life. This is a problem of social policy, whose solution is solely the province of the legislature and not the courts. Here, the sole issue to be decided is whether the permanent employment of broadcasting assistants must give way due to freedom of broadcasting, i.e., whether the case law of the Federal Labor Court on permanent employment can withstand attack in light of freedom of broadcasting. In so doing, it is of sole importance to avoid the situation where the constitutionally legitimated protected status afforded by labor law absolutely takes precedence to freedom of broadcasting. The «double-sidedness» of protective labor-law provisions as assumed by the majority of the Senate is therefore irrelevant in balancing freedom of broadcasting against protected status. In this context, it was only necessary to point out that the reliance by the Federal Labor Court on the principle of the social State was not relevant for its case law on permanent employment in light of constitutionally guaranteed freedom of programming.
Judge: Dr. Heußner.
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