The reason for the ruling was a complaint by the artist Bushido against the classification of his music album "Sonny Black" in the list of media harmful to minors (so-called indexing).
The doctrine of the margin of appreciation
In principle, the courts are responsible for interpreting legal terms. Most legal elements are legally unambiguous or can at least be sufficiently determined by interpretation.
However, the interpretation of so-called undefined legal terms, such as the concept of reliability relevant in trade law(Section 35 GewO), presents difficulties. The interpretation of such a term is not clearly possible, but rather requires a case-by-case prognosis weighing up many different aspects.
Even if an administrative decision is based on the interpretation of such an undefined legal term, it must be judicially reviewable with regard to the guarantee of legal protection under Art. 19 para. 4 GG. In such a case, the court itself therefore reassesses all the circumstances of the individual case.
However, this principle can no longer apply if the authority is granted its own scope for assessment - such as in the case of official assessments. In these cases, the court cannot base its assessment on that of the authority, as the decisions can only be objectified to a limited extent. For example, it depends on many subjective factors whether a superior classifies an employee as "particularly suitable" for a post. In such cases, judicial review is limited to reviewing the decision on the basis of general assessments (e.g. prohibition of arbitrariness), compliance with all procedural rules and a fully investigated set of facts.
Previously, case law also granted independent, pluralistically composed bodies - such as the Federal Review Board (BPS) in its ruling of December 16, 1971 - such a scope for assessment. The decision was based on the special expertise and the characteristic composition of the body. This guarantees that the various groups in our pluralistic society are taken into account in the decision.
With the ruling on the music album "Sonny Black", the BPS was denied this scope for judgment.
Legal dispute over the Bushido album "Sonny Black"
The ruling by the BVerwG is based on the indexing of the Bushido album "Sonny Black" by the BPS for media harmful to minors. The album contains 15 tracks describing the criminal lifestyle of gangster boss "Sonny Black". It was released in February 2014 and sold more than 100,000 copies within a short period of time. From the time it was indexed, the music album was subject to a distribution and advertising ban in accordance with Sections 15 para. 1, 24 para. 3 sentence 1 JuSchG.
In April 2015, the BPS panel of twelve people - including members from the fields of art, literature, the book trade, youth welfare and teaching - decided to index the music album in accordance with Section 18 para. 1 JuSchG. The committee justified its decision by stating that the lyrics were interspersed with statements in which women and homosexuals were degraded and disparaged in vulgar language. It was likely that children and young people saw the unrestricted willingness to use violence as exemplary. The interests of artistic freedom(Art. 5 para. 3 sentence 1 GG) would have to take a back seat in the necessary balancing of interests.
The BPS made this decision without hearing the rappers Kollegah and Farid Bang, who were also involved in the album.
Bushido's action for annulment before the Cologne Administrative Court was unsuccessful. On the plaintiff's appeal, however, the OVG Münster overturned the indexing decision. The OVG stated that the committee's decision was unlawful as all artists involved in the album should have been heard. It was not possible to remedy this deficiency through the legal proceedings, as the court could not make a final decision of its own regarding the balancing of artistic freedom and the protection of minors due to its discretionary powers; this was the sole responsibility of the panel.
With the appeal, the defendant BPS challenges the assumption of a margin of appreciation.
Decision of the BVerwG
The appeal was successful and the plaintiff's appeal was dismissed.
The BVerwG stated that the OVG was right to object to the BPS's decision-making procedure, as there was an obligation to consult all co-creators of the album pursuant to Section 21 para. 7 JuSchG.
However, the BVerwG is no longer able to recognize any viable reason that could justify the assumption of a margin of discretion on the part of the committee with regard to the balancing of artistic freedom and the protection of minors. The pluralistic, particularly knowledgeable and independent composition of the panel is not sufficient with regard to Art. 19 para. 4 GG to grant a margin of appreciation. Instead, it is the task of the administrative courts to review the assessment in its entirety. This goes hand in hand with the obligation of the courts to carry out clarification measures - such as hearings - themselves that were wrongly omitted.
The BVerwG then reviews the decision of the BPS in full and weighs up the balance between artistic freedom and the protection of minors, using the findings of the panel as expert evidence.
The court comes to the conclusion that the panel's decision was lawful. The album has harmful effects on minors, the containment of which should take precedence over artistic freedom. It is obvious that the collection of socially and ethically disoriented messages can have a devastating influence on susceptible minors from educationally disadvantaged sections of the population, especially as "Sonny Black" appears recognizably as the plaintiff's alter ego.
The plaintiff's argument that minors today are insensitive to unrestrained violence as well as to permanent humiliation and insults of others in vulgar language did not convince the Federal Administrative Court. Likewise, the plaintiff had not succeeded in shaking the panel's finding that the album did not have an enhanced artistic content.
What is the impact of the ruling?
In its ruling, the Federal Administrative Court did not explicitly state whether the change in case law is to be understood as depriving all pluralistically composed committees of their scope of assessment. However, until the "Sonny Black" ruling, the BPS was regarded as a textbook example of an authority with discretionary powers. Since the Federal Administrative Court also refers to Art. 19 para. 4 GG in general in its decision and does not expressly limit this to decisions of the BPS, it is reasonable to assume that the decision is generally applicable.
Ariane Albrecht and Dr. Fiete Kalscheuer