On 17 August 2011, the Federal Administrative Court in Leipzig ruled on three complaints against broadcasting fee notices. The plaintiffs each use part of their flats for the exercise of a self-employed (freelance) activity. In the rooms used for this purpose, they have an internet-capable PC. In the other rooms, which are used exclusively for private purposes, there are conventional television and radio sets for which broadcasting fees are paid. The defendant public broadcasters also demanded broadcasting fees for the PCs used for business purposes, while the plaintiffs invoked the exemption from fees for second devices. The lower courts had ruled in favour of the plaintiffs and cancelled the fee notices. The Federal Administrative Court rejected the appeals of the broadcasting organisations.
According to the relevant provision of the Interstate Treaty on Broadcasting Fees, no broadcasting fee is to be paid for new types of radio receivers (in particular computers that can play back broadcasting programmes exclusively via offers from the internet) in the not exclusively private sector if the devices are to be assigned to one and the same property or contiguous properties and other radio receivers are kept ready for reception there. The Federal Administrative Court has interpreted this provision to mean that the provision also applies if the conventional radio receiver is kept available for reception as the primary device on the same property to which the PC is also assigned as the secondary device, without it being relevant whether the conventional radio receiver is also kept available in the area of the property or flat that is not used exclusively for private purposes but also for business purposes. The Federal Administrative Court came to this assessment, taking into account the purpose of the regulation, which aims to privilege new types of broadcasting receivers under broadcasting licence fee law. On the one hand, such devices are often portable (laptops, internet-capable mobile phones) and therefore cannot be assigned to specific premises. On the other hand, the new devices - especially in the non-private sector - are often not (primarily) used for broadcasting reception, but are used as work equipment.
BVerwG 6 C 15.10, 45.10 and 20.11 - Judgments of 17.08.2011
Previous instances:
BVerwG 6 C 15.10: VG Koblenz, 1 K 1058/09.KO - Judgment of January 12, 2010 -
OVG Koblenz 7 A 10416/10 - Judgment of June 17, 2010 -
BVerwG 6 C 45.10:VG Frankfurt am Main, 11 K 1310/08.F(V) - Judgment of 8 September 2009 - VGH Kassel, 10 A 2910/09 - Decision of 30 March 2010 -
BVerwG 6 C 20.11: VG München, M 6b K 09.768 - Judgment of December 28, 2009 -
VGH Munich 7 BV 10.443 - Judgment of April 27, 2011 -
Source: Press release of the BVerwG
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information law (IT law)
E-mail: info@goldberg.de
