Too much government, too little civil society: Austria’s highest court ruled that appointing members to the top bodies of public broadcaster ORF in favor of the government majority is unconstitutional. The repair of the ORF law falls in the election year 2024 and will be modest. A “side aspect” of the decision: Austria’s constitution explicitly guarantees comprehensive public broadcasting.
Just a few months after a decision by the Austrian Constitutional Court (VfGH) put the financing of the public broadcaster ORF on a new footing, the Constitutional Court is forcing a further reform of the ORF law. On October 10, 2023, the court declared that the rules for appointing members of the two highest ORF bodies, the Board of Trustees (Stiftungsrat) and the Audience Board (Publikumsrat), were unconstitutional. When selecting members, the government currently has a majority over civil society institutions. However, this violates the constitutional plurality requirement in public broadcasting.
For many years, political control of the public broadcaster, exercised through the nominations of the members of the Board of Trustees as well as the Audience Board of the ORF, has been a highly controversial issue. It came to a head in 2021 when Austria’s People’s Party (ÖVP) appointed a new director general with their majority in the Board of Trustees. Although their share of the national vote is only 37.5 percent, and they form a coalition government with the Green Party, the People’s Party controls more than half of the ORF “Stiftungsrat” seats through the current procedures.
This unconstitutional practice must now be reformed due to the decision of the Constitutional Court. The history of this legal case is not without irony. Only after the governor of the state of Burgenland, Hans Peter Doskozil, a Social Democrat, was unable to secure his preferred candidate for ORF regional director did the state of Burgenland file a lawsuit with the Constitutional Court, leading to the ruling. Although Social Democratic governments were never shy in the past to use their majority on the ORF Board of Trustees, Doskozil celebrated the decision as a “democratic political success” and called for the “depoliticization” of public broadcasting.
On the other hand, Media Minister Susanne Raab appeared surprised, which does not seem credible given the controversy over political appointments and majorities that have been simmering for many decades. However, under the current law, it is impossible to challenge the selection of members because there is no supervisory authority. The path to the Constitutional Court that the state of Burgenland took is only open to some institutions.
The political reactions to the Constitutional Court’s decision were predictable. The Greens in government, as well as the opposition parties SPÖ and Neos, see an opportunity for a “comprehensive reform” of the appointment of members of the ORF boards. At the same time, the right-wing populist Freedom Party (FPÖ) repeated its mantra of ultimately reducing the ORF to a minimum offer. A particular challenge regarding the necessary reform is the March 31, 2025, deadline set by the court. New national elections must take place by autumn 2024 at the latest. According to all current opinion polls, a continuation of the current coalition between the ÖVP and the Greens can be ruled out, and what an apparently new constellation might be is currently not foreseeable.
Under the threat of a return of the FPÖ, currently leading in the polls, to a government role, it seems likely that the ORF law will undergo a relatively quick, pragmatic fix instead of a comprehensive reform. The VfGH’s decision makes this possible, writes Austria’s leading broadcasting law expert, Hans Peter Lehofer, a judge at Austria’s Administrative Court, on his blog.
The Constitutional Court did not object to federal and state governments, parliamentary parties, and other institutions sending members to the ORF committees. The Constitutional Court found these institutions a suitable representation of the general public. The court ruled only against the uneven distribution of the number of members and how they are selected by the government. But the governing coalition can easily fix this, writes Lehofer. A new distribution of the number of members to the Board of Trustees and to the Audience Board (which in turn sends members to the Board of Trustees), and a new way of appointing these Board members would fulfill the mandate of the Constitutional Court.
The EU’s European Media Freedom Act (EMFA), which is currently under discussion, could also play a role in reforming the ORF law. Expected new rules for constituting the two ORF Boards will probably meet the planned EMFA requirements. However, what is lacking in Austria is an independent supervisory authority to which objections can be raised against appointments. Austria’s media authority, KommAustria, recently rejected complaints brought by Presseclub Concordia against the government selection of members of the Audience Board by declaring itself not responsible for supervising the execution of the ORF law. The appeal against this rejection is currently making its way through the courts – in the light of the VfGH decision, the outcome appears open.
Broadcasting law expert Lehofer, however, highlights a hitherto little-noticed, influential aspect of the Constitutional Court’s recent two ORF decisions on financing and the appointments for the committees. In its decisions, the Court explicitly spelled out that the Austrian constitution grants an “institutional guarantee for the existence of public broadcasting” (Lehofer). This guarantee is anchored in the Broadcasting Constitutional Act and Article 10 of the European Convention on Human Rights (ECHR), a constitutional law in Austria. Any attempt to end public broadcasting as a whole or to reduce its comprehensive tasks and their financing to a niche existence – as the FPÖ, private broadcasters, and some newspaper publishers would like to see – would, therefore, be unconstitutional.
This article was comissioned by IPI as part of its work in the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism which tracks, monitors and responds to violations of press and media freedom in EU Member States, Candidate Countries, and Ukraine. The project is co-funded by the European Commission.
