Quality of Democracy
#7Key Findings
Reflecting a stable system founded on the rule of law, Germany’s score for democracy quality receives high rankings (rank 7) in international comparison. Its score on this measure has improved by 0.1 point since 2014.
Parties receive public and private funding, with some notable transparency concerns. A law bars parties that oppose the basic democratic order from receiving public funding. The media is largely free of political interference, with considerable diversity of ownership despite growing financial difficulties. Courts have blocked intelligence services from surveilling foreign journalists.
Civil rights and political liberties are broadly respected. Non-discrimination laws are extensive, though discrimination exists in various areas. Quota systems for women have been created for large companies’ executive boards. Xenophobia, antisemitism and Islamophobia are persistent problems.
The legal system, government and administration act predictably. Judicial review is strong, with courts having acted as an effective check on executive actions during the pandemic. Some scandals have emerged over the past decade, but corruption is rare. The law providing access to government information is being expanded to involve proactive duties of disclosure.
Parties receive public and private funding, with some notable transparency concerns. A law bars parties that oppose the basic democratic order from receiving public funding. The media is largely free of political interference, with considerable diversity of ownership despite growing financial difficulties. Courts have blocked intelligence services from surveilling foreign journalists.
Civil rights and political liberties are broadly respected. Non-discrimination laws are extensive, though discrimination exists in various areas. Quota systems for women have been created for large companies’ executive boards. Xenophobia, antisemitism and Islamophobia are persistent problems.
The legal system, government and administration act predictably. Judicial review is strong, with courts having acted as an effective check on executive actions during the pandemic. Some scandals have emerged over the past decade, but corruption is rare. The law providing access to government information is being expanded to involve proactive duties of disclosure.
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How fair are procedures for registering candidates and parties?
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Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
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A few restrictions on election procedures discriminate against a small number of candidates and parties.
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Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
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Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
On 26 September 2021, elections were held to constitute the new German Bundestag. A total of 40 parties competed for the seats. A new record was with 6,211 candidates running either as independent candidates or as candidates from registered parties (Bundeswahlleiter 2021).
Germany’s constitution ensures that members of the Bundestag, the country’s lower parliamentary house, are elected in general, direct, free, equal and secret elections for a legislative period of four years (Basic Law, Arts. 38, 39). Parties that defy the constitution can be prohibited by the Federal Constitutional Court (Bundesverfassungsgericht), but the legal conditions required for such a ban are stringent. The last attempt to ban the far-right National Democratic Party (NPD) failed in 2017. The Federal Constitutional Court decided that while the party is without any doubt unconstitutional in its program and actions, there are no indications that the party will succeed in achieving its anti-constitutional aims.
The Political Parties Act (Parteiengesetz, PPA) sets general criteria for the management of political parties and candidates. While independent candidates have to fulfill a signature-gathering prerequisite (modest by international standards) in order to qualify for the ballot, parties must meet strict organizational requirements (PPA Section II). If parties have continuously held at least five seats in the Bundestag or a state parliamentary body (Landtag) during the last legislative period, they are allowed run for office without any initial approval from the Federal Election Committee (Bundeswahlausschuss).
Citations:
Bundeswahlleiter (2021): So viele Wahlbewerberinnen und Wahlbewerber wie noch nie nehmen teil, Pressemitteilung Nr. 33/21 vom 31. August 2021.
Germany’s constitution ensures that members of the Bundestag, the country’s lower parliamentary house, are elected in general, direct, free, equal and secret elections for a legislative period of four years (Basic Law, Arts. 38, 39). Parties that defy the constitution can be prohibited by the Federal Constitutional Court (Bundesverfassungsgericht), but the legal conditions required for such a ban are stringent. The last attempt to ban the far-right National Democratic Party (NPD) failed in 2017. The Federal Constitutional Court decided that while the party is without any doubt unconstitutional in its program and actions, there are no indications that the party will succeed in achieving its anti-constitutional aims.
The Political Parties Act (Parteiengesetz, PPA) sets general criteria for the management of political parties and candidates. While independent candidates have to fulfill a signature-gathering prerequisite (modest by international standards) in order to qualify for the ballot, parties must meet strict organizational requirements (PPA Section II). If parties have continuously held at least five seats in the Bundestag or a state parliamentary body (Landtag) during the last legislative period, they are allowed run for office without any initial approval from the Federal Election Committee (Bundeswahlausschuss).
Citations:
Bundeswahlleiter (2021): So viele Wahlbewerberinnen und Wahlbewerber wie noch nie nehmen teil, Pressemitteilung Nr. 33/21 vom 31. August 2021.
To what extent do candidates and parties have fair access to the media and other means of communication?
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All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
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Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
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Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
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Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
There are generally no media-related regulations at the federal level, but broadcast media are regulated by Länder laws. However The Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag) provides a general framework stipulating requirements of plurality of opinion, balanced coverage for all important political, ideological and social forces, and requires those parties with a list in at least one Länder be granted an “appropriate amount” of broadcasting time. The allocation of airtime is based on each party’s result in the previous general elections (OSCE 2021). For television airtime, the time granted to large parliamentary parties is not allowed to exceed twice the amount offered to smaller parliamentary parties, which in turn receive no more than double the amount of airtime provided to parties currently unrepresented in parliament. While public media networks provide campaigns with airtime free of charge, private media are not allowed to charge airtime fees of more than 35% of what they demand for commercial advertising.
Article 5 of the Political Parties Act (Parteiengesetz, PPA) requires that “where a public authority provides facilities or other public services for use by one party, equal treatment must be accorded to all parties.”
Despite these rules, there is a persistent debate as to whether the media’s tendency to generally focus coverage on the largest parties and, in particular, on government parties is too strong. According to the most recent OSCE report, most observers regard political and election coverage in Germany to be fair and balanced, but some voiced concerns regarding the inequitable access to media and potentially biased coverage (OSCE 2021).
Citations:
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
Article 5 of the Political Parties Act (Parteiengesetz, PPA) requires that “where a public authority provides facilities or other public services for use by one party, equal treatment must be accorded to all parties.”
Despite these rules, there is a persistent debate as to whether the media’s tendency to generally focus coverage on the largest parties and, in particular, on government parties is too strong. According to the most recent OSCE report, most observers regard political and election coverage in Germany to be fair and balanced, but some voiced concerns regarding the inequitable access to media and potentially biased coverage (OSCE 2021).
Citations:
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
To what extent do all citizens have the opportunity to exercise their right of participation in national elections?
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All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
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The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
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While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
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The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
German citizens (Basic Law, Art. 116 sec. 1) aged 18 or older are eligible to vote and run for election to the Bundestag (Federal Electoral Act, sections 12.1, 15). By judicial order, the right to vote can be denied to criminals, persons lacking legal capacity and convicts residing in a psychiatric hospital (Federal Electoral Act, sec.13). Between the 2017 and 2021 general election, the legal framework has been amended to permit citizens under custodianship due to psychosocial disability to vote, which returned voting rights to about 80,000 citizens (OSCE 2021). Citizens permanently residing abroad are eligible to vote if they have three months of continual residence in Germany within the last 25 years (after reaching the age of 14). Additionally, citizens who have never resided in Germany are eligible to vote by postal vote if they can demonstrate their connection to the country and familiarity with the political situation, and are affected by it. The new government announced plans to make it easier for Germans living abroad to exercise their right to vote and to lower the voting age to 16 years (Koalitionsvertrag 2021: 12). The latter would need an amendment of the Basic Law.
Prior to an election, every registered citizen receives a notification containing information on how to cast a vote as well as an application form for voting by post. For the September 2021 election and in the context of the pandemic, the share of postal votes reached a record of 47.3%, up from 28.6% in 2017 (Bundeswahlleiter 2021a). While postal voting was conducted smoothly, there was a local problem with electoral districts in Berlin involving insufficient ballots and a lack of administrative staff, which led to long waiting times. The Federal Election Supervisor has officially challenged the results of six Berlin constituencies with the complaint that citizens were effectively denied their right to cast their vote (Bundeswahlleiter 2021b).
Citations:
Bundeswahlleiter (2021a): Bundestagswahl 2021: Anteil der Briefwählerinnen und Briefwähler bei 47,3 %, Pressemitteilung Nr. 53/21 vom 15. Oktober 2021.
Bundeswahlleiter (2021b). Bundestagswahl 2021: Bundeswahlleiter legt Einspruch in sechs Berliner Wahlkreisen ein, Pressemitteilung Nr. 54/21 vom 19. November 2021.
Koalitionsvertrag (2021): Mehr Fortschritt wagen, Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit, Koalitionsvertrag zwischen SPD, Bündnis 90/Die Grünen und FDP.
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
Prior to an election, every registered citizen receives a notification containing information on how to cast a vote as well as an application form for voting by post. For the September 2021 election and in the context of the pandemic, the share of postal votes reached a record of 47.3%, up from 28.6% in 2017 (Bundeswahlleiter 2021a). While postal voting was conducted smoothly, there was a local problem with electoral districts in Berlin involving insufficient ballots and a lack of administrative staff, which led to long waiting times. The Federal Election Supervisor has officially challenged the results of six Berlin constituencies with the complaint that citizens were effectively denied their right to cast their vote (Bundeswahlleiter 2021b).
Citations:
Bundeswahlleiter (2021a): Bundestagswahl 2021: Anteil der Briefwählerinnen und Briefwähler bei 47,3 %, Pressemitteilung Nr. 53/21 vom 15. Oktober 2021.
Bundeswahlleiter (2021b). Bundestagswahl 2021: Bundeswahlleiter legt Einspruch in sechs Berliner Wahlkreisen ein, Pressemitteilung Nr. 54/21 vom 19. November 2021.
Koalitionsvertrag (2021): Mehr Fortschritt wagen, Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit, Koalitionsvertrag zwischen SPD, Bündnis 90/Die Grünen und FDP.
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?
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The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
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The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
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The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
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The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
In general, Germany’s political parties finance their activities under the terms of the Political Parties Act (PPA) through state funding, membership fees, donations and sponsorships. In order to be eligible for state funding, parties must win at least 0.5% of the national vote in federal or EU elections, or 1% in state elections. A party’s first 4 million votes qualify it for funding of €1 per vote per year to support smaller parties; for every vote thereafter, parties receive €0.83. In addition, individual donations of up to €3,300 are provided with matching funds of €0.45 per €1 collected. State funding for political parties has an upper limit which, in 2021, was almost €200 million (Deutscher Bundestag 2021). The cap is adjusted annually for inflation. However, public financing must be matched by private funding. Thus, parties with little revenue from membership fees or donations receive less from the state than they would if the calculation were based exclusively on the number of votes received.
The German system of party financing generally provides an appropriate level of support to ensure political involvement and party competition. However, critics continue to point to the relatively high thresholds set for disclosing party financing sources as a problem with regards to transparency. Donations under €10,000 do not need to be reported, and the immediate disclosure requirement for large donations applies only to amounts exceeding €50,000. The Council of Europe’s Group of States against Corruption (GRECO) and several OSCE experts therefore recommend lower thresholds and making individual campaign financing reports public immediately after elections (OSCE 2021). The new government has announced its intent to comply with some of these recommendations, including reducing reporting thresholds (Koalitionsvertrag 2021, p. 10).
Citations:
Deutscher Bundestag (2021): Unterrichtung durch den Präsidenten des Deutschen Bundestages, Drucksache 19/30123, 27.05.2021.
Koalitionsvertrag (2021): Mehr Fortschritt wagen, Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit, Koalitionsvertrag zwischen SPD, Bündnis 90/Die Grünen und FDP.
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
The German system of party financing generally provides an appropriate level of support to ensure political involvement and party competition. However, critics continue to point to the relatively high thresholds set for disclosing party financing sources as a problem with regards to transparency. Donations under €10,000 do not need to be reported, and the immediate disclosure requirement for large donations applies only to amounts exceeding €50,000. The Council of Europe’s Group of States against Corruption (GRECO) and several OSCE experts therefore recommend lower thresholds and making individual campaign financing reports public immediately after elections (OSCE 2021). The new government has announced its intent to comply with some of these recommendations, including reducing reporting thresholds (Koalitionsvertrag 2021, p. 10).
Citations:
Deutscher Bundestag (2021): Unterrichtung durch den Präsidenten des Deutschen Bundestages, Drucksache 19/30123, 27.05.2021.
Koalitionsvertrag (2021): Mehr Fortschritt wagen, Bündnis für Freiheit, Gerechtigkeit und Nachhaltigkeit, Koalitionsvertrag zwischen SPD, Bündnis 90/Die Grünen und FDP.
OSCE (2021): Federal Republic of Germany. Elections to the Federal Parliament (Bundestag). 26 September 2021, ODIHR Needs Assessment Mission Report, 22 July.
Do citizens have the opportunity to take binding political decisions when they want to do so?
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Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
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Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
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Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
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Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
In Germany, referendums are of importance on the municipal and state levels. At the federal level, referendums are exclusively reserved for constitutional (Basic Law, Art. 146) and territorial issues. On the municipal and state levels, voter initiatives have grown in use since German unification, with their increasing frequency bolstered by legal changes and growing voter awareness. However, discussions about introducing referendums on the federal level are ongoing and intensifying.
From 1946 to 2019, 351 direct democratic procedures took place in all 16 Länder (states) (Mehr Demokratie 2019). In some states (e.g., Baden-Wuerttemberg, North Rhine-Westphalia, Rhineland-Palatinate), the government or parliament can, under certain conditions, call a referendum with the power to confirm or overturn a decision by the legislature. The main themes had been education/culture (about 25%) and democracy, state organization, and domestic politics (about 25%). Bavaria (57), Hamburg (50) and Brandenburg (49) used direct democratic procedures most frequently. There is an interesting imbalance between the German Länder. Whereas in the Länder of the former West Germany, direct democratic processes are relatively common (especially in Bavaria, Hamburg and Berlin), the number of such procedures in the Länder of the former East Germany remains extremely low; indeed, no plebiscite has yet been initiated from below, by the population, in these federal states.
In states such as Baden-Wuerttemberg, North Rhine-Westphalia, Rhineland-Palatinate, citizens can, under certain conditions, call a referendum with the power to confirm or overturn a decision by the legislature. Since 2014, no such referendums have occurred.
Citations:
Mehr Demokratie (2019): Volksbegehrenesbericht 2019.
From 1946 to 2019, 351 direct democratic procedures took place in all 16 Länder (states) (Mehr Demokratie 2019). In some states (e.g., Baden-Wuerttemberg, North Rhine-Westphalia, Rhineland-Palatinate), the government or parliament can, under certain conditions, call a referendum with the power to confirm or overturn a decision by the legislature. The main themes had been education/culture (about 25%) and democracy, state organization, and domestic politics (about 25%). Bavaria (57), Hamburg (50) and Brandenburg (49) used direct democratic procedures most frequently. There is an interesting imbalance between the German Länder. Whereas in the Länder of the former West Germany, direct democratic processes are relatively common (especially in Bavaria, Hamburg and Berlin), the number of such procedures in the Länder of the former East Germany remains extremely low; indeed, no plebiscite has yet been initiated from below, by the population, in these federal states.
In states such as Baden-Wuerttemberg, North Rhine-Westphalia, Rhineland-Palatinate, citizens can, under certain conditions, call a referendum with the power to confirm or overturn a decision by the legislature. Since 2014, no such referendums have occurred.
Citations:
Mehr Demokratie (2019): Volksbegehrenesbericht 2019.
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To what extent are the media independent from government?
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Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
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The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
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The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/market access for private media.
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Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Germany’s Basic Law guarantees freedom of expression, press and broadcasting (Art. 5 sec. 1) and prohibits censorship, with exceptions delineated by the standards of mutual respect, personal dignity and the protection of young people. Strong constitutional guarantees and an independent judiciary provide for strong media freedom.
Print media, which are largely self-regulated, are broadly independent of political interference. The German Press Council is tasked with protecting freedom of the press. However, the latent economic crisis of newspapers and publishing houses may slowly but steadily undermine media pluralism. In the World Press Freedom Index published in 2021, Germany was ranked 13th out of 180 countries, showing only minor fluctuations in the years before.
The Interstate Treaty on the Modernization of Media (Medienstaatsvertrag) provides a general nationwide framework for the operation of public and private broadcast media. In the private broadcasting sector, governmental influence is limited to the general provisions, regulations and guidelines stated in the interstate treaty that ban discrimination or other abuses. The relationship between public authorities and private media can be seen as unproblematic.
In 2020, the Federal German Constitutional Court, in its ruling on the BND Law, which governs the activities of the country’s foreign intelligence agency BND, has strengthened the protection of foreign journalists against surveillance. The court has thus brought an end to the previous approach to mass surveillance, in which the secret service was essentially unconstrained in its mass surveillance of non-Germans, including foreign journalists.
Citations:
World Press Freedom Index 2021, https://rsf.org/en/ranking (accessed: 13 January 2022).
Print media, which are largely self-regulated, are broadly independent of political interference. The German Press Council is tasked with protecting freedom of the press. However, the latent economic crisis of newspapers and publishing houses may slowly but steadily undermine media pluralism. In the World Press Freedom Index published in 2021, Germany was ranked 13th out of 180 countries, showing only minor fluctuations in the years before.
The Interstate Treaty on the Modernization of Media (Medienstaatsvertrag) provides a general nationwide framework for the operation of public and private broadcast media. In the private broadcasting sector, governmental influence is limited to the general provisions, regulations and guidelines stated in the interstate treaty that ban discrimination or other abuses. The relationship between public authorities and private media can be seen as unproblematic.
In 2020, the Federal German Constitutional Court, in its ruling on the BND Law, which governs the activities of the country’s foreign intelligence agency BND, has strengthened the protection of foreign journalists against surveillance. The court has thus brought an end to the previous approach to mass surveillance, in which the secret service was essentially unconstrained in its mass surveillance of non-Germans, including foreign journalists.
Citations:
World Press Freedom Index 2021, https://rsf.org/en/ranking (accessed: 13 January 2022).
To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?
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Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
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Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
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Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
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Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
In Germany, the Interstate Treaty on the Modernization of Media (Medienstaatsvertrag, MStV) defines the threshold at which a television broadcaster has achieved the dominant power of influence to be an annual average audience share of 30% (MStV, Sec. III, § 60). The Federal Cartel Office regulates most issues regarding oligopolies and monopolies in Germany, and has blocked several potential mergers in both print and electronic media markets.
Two main public television broadcasters operate at the national level in Germany: the Arbeitsgemeinschaft der Rundfunkanstalten Deutschlands (ARD), a conglomerate composed of various regional TV channels, and the Zweites Deutsches Fernsehen (ZDF). According to the broadcast media research group Arbeitsgemeinschaft Fernsehforschung (AGF), in the television market, public broadcasters held a market share of 47% in 2021. In the private sector, the RTL Group held a 17.4% market share, while the ProSiebenSat.1 Media AG accounted for 9% of the total television market for the same year. Private broadcasters’ market shares have fallen as they are increasingly crowded out by streaming providers.
TV is the most commonly used media (92%), followed by radio (94%) and the internet (83%). Daily audiovisual media use increased significantly during the pandemic, reaching an average 9 hours and 43 minutes, which is 40 minutes more than that recorded in 2019 (Vaunet 2021).
The nationwide print media market is dominated by five leading daily newspapers: the Süddeutsche Zeitung, Frankfurter Allgemeine Zeitung, Die Welt, Handelsblatt and the tabloid daily Bild. Bild has by far the biggest circulation in Germany but its circulation numbers are falling steeply. Additional agenda-setters are a number of weeklies, in particular Der Spiegel, Focus, Die Zeit and Stern. However, the latent economic crisis being experienced by newspapers and publishing houses may slowly but steadily undermine media pluralism. Between 1995 and 2020, daily newspaper circulation has been more than halved (Statista 2021).
The internet has become an increasingly important medium through which citizens access and collect information. This has forced the print media to cut costs significantly, which includes reducing editorial staff size.
In short, Germany continues to benefit from a comparatively pluralistic and diversified media ownership structure and somewhat decentralized television and radio markets.
Citations:
AGF (2022): Jahresmarktanteile, Top 30 Sender: 2021, https://www.agf.de/daten/tv-daten (accessed: 13 January 2022).
Statista (2021): Auflagenstruktur der Tageszeitungen in Deutschland im 3. Quartal 2021, https://de.statista.com/statistik/daten/studie/382058/umfrage/auflagenstruktur-der-tageszeitungen/ (accessed: 13 January 2022).
Vaunet (2021): Mediennutzung 2020: über neuneinhalb Stunden audiovisuelle Mediennutzung pro Tag, https://www.vau.net/studien-prognosen/content/mediennutzung-2020-neuneinhalb-stunden-audiovisuelle-mediennutzung-pro-tag (accessed: 13 January 2022).
Two main public television broadcasters operate at the national level in Germany: the Arbeitsgemeinschaft der Rundfunkanstalten Deutschlands (ARD), a conglomerate composed of various regional TV channels, and the Zweites Deutsches Fernsehen (ZDF). According to the broadcast media research group Arbeitsgemeinschaft Fernsehforschung (AGF), in the television market, public broadcasters held a market share of 47% in 2021. In the private sector, the RTL Group held a 17.4% market share, while the ProSiebenSat.1 Media AG accounted for 9% of the total television market for the same year. Private broadcasters’ market shares have fallen as they are increasingly crowded out by streaming providers.
TV is the most commonly used media (92%), followed by radio (94%) and the internet (83%). Daily audiovisual media use increased significantly during the pandemic, reaching an average 9 hours and 43 minutes, which is 40 minutes more than that recorded in 2019 (Vaunet 2021).
The nationwide print media market is dominated by five leading daily newspapers: the Süddeutsche Zeitung, Frankfurter Allgemeine Zeitung, Die Welt, Handelsblatt and the tabloid daily Bild. Bild has by far the biggest circulation in Germany but its circulation numbers are falling steeply. Additional agenda-setters are a number of weeklies, in particular Der Spiegel, Focus, Die Zeit and Stern. However, the latent economic crisis being experienced by newspapers and publishing houses may slowly but steadily undermine media pluralism. Between 1995 and 2020, daily newspaper circulation has been more than halved (Statista 2021).
The internet has become an increasingly important medium through which citizens access and collect information. This has forced the print media to cut costs significantly, which includes reducing editorial staff size.
In short, Germany continues to benefit from a comparatively pluralistic and diversified media ownership structure and somewhat decentralized television and radio markets.
Citations:
AGF (2022): Jahresmarktanteile, Top 30 Sender: 2021, https://www.agf.de/daten/tv-daten (accessed: 13 January 2022).
Statista (2021): Auflagenstruktur der Tageszeitungen in Deutschland im 3. Quartal 2021, https://de.statista.com/statistik/daten/studie/382058/umfrage/auflagenstruktur-der-tageszeitungen/ (accessed: 13 January 2022).
Vaunet (2021): Mediennutzung 2020: über neuneinhalb Stunden audiovisuelle Mediennutzung pro Tag, https://www.vau.net/studien-prognosen/content/mediennutzung-2020-neuneinhalb-stunden-audiovisuelle-mediennutzung-pro-tag (accessed: 13 January 2022).
To what extent can citizens obtain official information?
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Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
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Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
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Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
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Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
The Freedom of Information Act took effect in 2006. The act defines what government information is publicly available. Citizens are increasingly making use of their rights, and federal authorities no longer regard a citizen’s right to information as a nuisance, but rather as essential to a healthy civil society. The federal commissioner for data protection and freedom of information painted a positive picture in his most recent report, expressing satisfaction with the staffing increase that enabled his agency to intensify its information and consultancy activities. From its on-site audits in 2020 of the Federal Agency for Civic Education (Bundeszentrale für Politische Bildung) and the Federal Agency for Technical Relief (Technisches Hilfswerk), the commissioner’s agency certified a swift and appropriate handling of information requests. The pandemic has led to a strong increase of requests for information that are addressed to the Robert Koch Institute (RKI) and the Federal Ministry of Health. From the commissioner’s perspective, the RKI’s exceptional workload constitutes a legitimate explanation for why the RKI could not always meet the 30-day deadline for responding to inquiries.
As familiarity with the Information Act has improved significantly, and its enforcement is effective, the commissioner recommends transforming the Information Act into a “Transparency Act” that would involve strengthening requirements for government institutions that would involve comprehensive and proactive disclosure policies. The new coalition has taken up this recommendation and announced a Federal Transparency Act for the new legislative period (Koalitionsvertrag 2021, p. 9).
Citations:
BfDI (2021): Der Bundesbeauftragte für den Datenschutz und die Informationsfreiheit, 29. Tätigkeitsbericht für den Datenschutz und die Informationsfreiheit.
As familiarity with the Information Act has improved significantly, and its enforcement is effective, the commissioner recommends transforming the Information Act into a “Transparency Act” that would involve strengthening requirements for government institutions that would involve comprehensive and proactive disclosure policies. The new coalition has taken up this recommendation and announced a Federal Transparency Act for the new legislative period (Koalitionsvertrag 2021, p. 9).
Citations:
BfDI (2021): Der Bundesbeauftragte für den Datenschutz und die Informationsfreiheit, 29. Tätigkeitsbericht für den Datenschutz und die Informationsfreiheit.
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To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?
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9
9
All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
8
7
6
7
6
The state respects and protects rights, with few infringements. Courts provide protection.
5
4
3
4
3
Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
2
1
1
State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
In general, all state institutions respect individual freedoms and protect civil rights. Civil rights are guaranteed by the Basic Law and their modification is possible only by a two-thirds legislative majority. Some provisions concerning basic human rights are not alterable at all. The court system works independently and effectively protects individuals against encroachments by the executive and legislature. According to the Freedom House (2021) Civil Liberties Index, Germany is considered to be free but there are concerns cited with regard to issues such as politically motivated crime (see “Internal Security Policy”), data protection (see “Data Protection Authority”) and free speech, the latter of which results from a majority of Germans expressing that they are cautious about publicly stating their opinion.
Citations:
Freedom House (2021): Freedom in the World 2021, German, https://freedomhouse.org/country/germany/freedom-world/2021 (accessed: 14 January 2022).
Citations:
Freedom House (2021): Freedom in the World 2021, German, https://freedomhouse.org/country/germany/freedom-world/2021 (accessed: 14 January 2022).
To what extent does the state concede and protect political liberties?
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9
9
All state institutions concede and effectively protect political liberties.
8
7
6
7
6
All state institutions for the most part concede and protect political liberties. There are only few infringements.
5
4
3
4
3
State institutions concede political liberties but infringements occur regularly in practice.
2
1
1
Political liberties are unsatisfactory codified and frequently violated.
Due to Germany’s historical experience with National Socialism, political liberties are highly protected by the country’s constitution and the Constitutional Court. Freedom of expression is protected by the constitution (Art. 5), although there are exceptions for hate speech and Nazi propaganda, such as Holocaust denial. With the exception of cases where individuals are deemed to be actively seeking to overturn the democratic order, the right to assemble peacefully is guaranteed (Basic Law, Art. 8) and is not infringed upon. All exceptions are applied very restrictively. For example, even extreme parties such as the far-right National Democratic Party (NPD) currently have full freedom to operate. The Bundesrat appealed to the Federal Constitutional Court seeking to prohibit the NPD but the court did not ban the NPD in his judgment from January 17, 2017.
The freedoms to associate and organize (Basic Law, Art. 9), as well as academic freedom, are generally respected. Non-governmental organizations operate freely. Every person has the right to address requests and complaints to the competent authorities and to the legislature (Basic Law, Art. 17). Freedom of belief is protected by the constitution (Basic Law, Art. 4).
The freedoms to associate and organize (Basic Law, Art. 9), as well as academic freedom, are generally respected. Non-governmental organizations operate freely. Every person has the right to address requests and complaints to the competent authorities and to the legislature (Basic Law, Art. 17). Freedom of belief is protected by the constitution (Basic Law, Art. 4).
How effectively does the state protect against different forms of discrimination?
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9
9
State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
8
7
6
7
6
State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
5
4
3
4
3
State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
2
1
1
The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Germany’s Basic Law (Art. 3 sec.3) states that every person, irrespective of parentage, sex, race, language, ethnic origin, disability, faith, religious belief or political conviction is equally important and has the same rights. The General Equal Treatment Act of 2006 added age and sexual orientation to that enumeration of protected categories. The Federal Anti-Discrimination Agency monitors compliance with legal anti-discrimination norms and principles, supports persons who have experienced discrimination, mediates settlements, informs the public about infringements and commissions research on the subject of discrimination.
Nevertheless, discrimination remains a problem in various areas. For example, women are underrepresented in parliaments. The share of women elected as representatives to the Bundestag increased from the previous election’s 31% to 34% in the 2021 general election (Tagesschau 2021), a share that remains far from parity. Attempts at the state levels in Brandenburg and Thuringia to enforce parity through legal parity requirements for party lists were rejected by the state constitutional courts as contradicting voting freedoms.
A law requiring large German companies to reserve at least 30% of nonexecutive-board seats for women took effect in 2016. In 2021, a similar quota was enacted for executive boards requiring at least one woman for boards with four or more members. All these requirements affect only a limited number of large companies.
Adoption and tax legislation passed in 2014 gave equal rights to same-sex couples in these areas. The government legalized same-sex marriage in 2017 (Freedom House 2021).
Xenophobia, antisemitism and Islamophobia are a problem, and politically motivated crime including demagoguery and violent assaults is on the rise (see “Internal Security Policy”).
Citations:
Freedom House (2021): Freedom in the World 2021, German, https://freedomhouse.org/country/germany/freedom-world/2021 (accessed: 14 January 2022).
Tagessschau (2021): Zusammensetzung des Bundestags, Mehr Frauen ins Parlament – aber wie?, https://www.tagesschau.de/inland/btw21/bundestag-frauen-101.html (accessed: 14 January 2022).
Nevertheless, discrimination remains a problem in various areas. For example, women are underrepresented in parliaments. The share of women elected as representatives to the Bundestag increased from the previous election’s 31% to 34% in the 2021 general election (Tagesschau 2021), a share that remains far from parity. Attempts at the state levels in Brandenburg and Thuringia to enforce parity through legal parity requirements for party lists were rejected by the state constitutional courts as contradicting voting freedoms.
A law requiring large German companies to reserve at least 30% of nonexecutive-board seats for women took effect in 2016. In 2021, a similar quota was enacted for executive boards requiring at least one woman for boards with four or more members. All these requirements affect only a limited number of large companies.
Adoption and tax legislation passed in 2014 gave equal rights to same-sex couples in these areas. The government legalized same-sex marriage in 2017 (Freedom House 2021).
Xenophobia, antisemitism and Islamophobia are a problem, and politically motivated crime including demagoguery and violent assaults is on the rise (see “Internal Security Policy”).
Citations:
Freedom House (2021): Freedom in the World 2021, German, https://freedomhouse.org/country/germany/freedom-world/2021 (accessed: 14 January 2022).
Tagessschau (2021): Zusammensetzung des Bundestags, Mehr Frauen ins Parlament – aber wie?, https://www.tagesschau.de/inland/btw21/bundestag-frauen-101.html (accessed: 14 January 2022).
Graph View
To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?
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Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
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6
7
6
Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
5
4
3
4
3
Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
2
1
1
Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Germany’s Basic Law (Art. 20 sec. 3) states that “the legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.” German authorities also live up to this high standard in practice. Relative to other countries, Germany generally scores very highly on the issue of the rule of law in indices whose primary focus is placed on formal constitutional criteria.
In substantive terms, German citizens and foreigners appreciate the predictability and impartiality of the German legal system, regard Germany’s system of contract enforcement and property rights as being of high quality, and put considerable trust in the police forces and courts. Germany’s high courts have significant institutional power and a high degree of independence from political influence. The Federal Constitutional Court’s final say on the interpretation of the Basic Law provides for a high degree of legal certainty. In the World Justice Project’s Rule of Law Index 2021, Germany was ranked fifth out of 139 countries (World Justice Project 2021).
Citations:
World Justice Project (2021): Rule of Law Index, 2021 Insights, Highlights and Data Trends from
the WJP Rule of Law Index 2021.
In substantive terms, German citizens and foreigners appreciate the predictability and impartiality of the German legal system, regard Germany’s system of contract enforcement and property rights as being of high quality, and put considerable trust in the police forces and courts. Germany’s high courts have significant institutional power and a high degree of independence from political influence. The Federal Constitutional Court’s final say on the interpretation of the Basic Law provides for a high degree of legal certainty. In the World Justice Project’s Rule of Law Index 2021, Germany was ranked fifth out of 139 countries (World Justice Project 2021).
Citations:
World Justice Project (2021): Rule of Law Index, 2021 Insights, Highlights and Data Trends from
the WJP Rule of Law Index 2021.
To what extent do independent courts control whether government and administration act in conformity with the law?
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9
9
Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
8
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6
7
6
Independent courts usually manage to control whether the government and administration act in conformity with the law.
5
4
3
4
3
Courts are independent, but often fail to ensure legal compliance.
2
1
1
Courts are biased for or against the incumbent government and lack effective control.
Germany’s judiciary works independently and effectively protects individuals against encroachments by the executive and legislature. The judiciary inarguably has a strong position in reviewing the legality of administrative acts. The Federal Constitutional Court ensures that all state institutions obey the constitution. The court acts only when an appeal is made, but holds the right to declare laws unconstitutional and has exercised this power a number of times. In case of conflicting opinions, the decisions made by the Federal Constitutional Court are final; all other governmental and legislative institutions are bound to comply with its verdicts (Basic Law, Art. 93).
Since the beginning of the pandemic, the judiciary has proved effective in keeping the executive from overstepping its powers and encroaching on individual fundamental rights and political liberties. All courts were able to carry out their duties without constraint, even during the most severe lockdowns.
Beginning with various lower courts at the state level and extending to the Federal Constitutional Court, the courts have frequently reviewed various details of the lockdowns and have set certain limits through their jurisprudence. The case law of the Federal Constitutional Court was particularly important in this regard, because it occasionally overturned government decisions, especially with regard to the restrictions placed on the right to assemble. At the end of the first waves of the pandemic, state courts sometimes obliged state governments to lift various lockdown measures earlier than had been planned by the executive.
Both domestically and internationally, Germany’s courts in general, and the Federal Constitutional Court in particular, are highly regarded for their independence. The World Justice Project’s Rule of Law Index 2021 ranked Germany third among 139 countries on civil justice and sixth with regard to criminal justice (World Justice Project 2021).
Citations:
World Justice Project (2021): Rule of Law Index 2021, Report.
Since the beginning of the pandemic, the judiciary has proved effective in keeping the executive from overstepping its powers and encroaching on individual fundamental rights and political liberties. All courts were able to carry out their duties without constraint, even during the most severe lockdowns.
Beginning with various lower courts at the state level and extending to the Federal Constitutional Court, the courts have frequently reviewed various details of the lockdowns and have set certain limits through their jurisprudence. The case law of the Federal Constitutional Court was particularly important in this regard, because it occasionally overturned government decisions, especially with regard to the restrictions placed on the right to assemble. At the end of the first waves of the pandemic, state courts sometimes obliged state governments to lift various lockdown measures earlier than had been planned by the executive.
Both domestically and internationally, Germany’s courts in general, and the Federal Constitutional Court in particular, are highly regarded for their independence. The World Justice Project’s Rule of Law Index 2021 ranked Germany third among 139 countries on civil justice and sixth with regard to criminal justice (World Justice Project 2021).
Citations:
World Justice Project (2021): Rule of Law Index 2021, Report.
To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?
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9
9
Justices are appointed in a cooperative appointment process with special majority requirements.
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6
7
6
Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
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3
4
3
Justices are exclusively appointed by different bodies without special majority requirements.
2
1
1
All judges are appointed exclusively by a single body irrespective of other institutions.
Federal judges are jointly appointed by the minister overseeing the issue area and the Committee for the Election of Judges, which consists of state ministers responsible for the sector and an equal number of members of the Bundestag. Federal Constitutional Court judges are elected in accordance with the principle of federative equality (föderativer Parität), with half chosen by the Bundestag and half by the Bundesrat (the Federal Council). The Federal Constitutional Court consists of sixteen judges, who exercise their duties in two senates of eight members each. While the Bundesrat elects judges directly and openly, the Bundestag used to delegate its decision to a committee in which the election took place indirectly, secretly and opaquely. In May 2015, the Bundestag unanimously decided to change this procedure. As a result, the Bundestag now elects judges directly following a proposal from its electoral committee (Wahlausschuss). Decisions in both houses require a two-thirds majority.
In summary, judges in Germany are elected by several independent bodies. The election procedure is representative, because the two bodies involved do not interfere in each other’s decisions. The required majority in each chamber is a qualified two-thirds majority. By requiring a qualified majority, the political opposition is ensured a voice in the selection of judges regardless of current majorities. In November 2018, Stephan Harbarth, previously a member of the German Bundestag, was elected as a new vice-president of the Federal Constitutional Court. This election received substantial press coverage, with discussions as to whether a former member of parliament who worked as a lawyer has the right profile for this position. This example seems to indicate that the new and open procedure has had a positive effect on public awareness.
In summary, judges in Germany are elected by several independent bodies. The election procedure is representative, because the two bodies involved do not interfere in each other’s decisions. The required majority in each chamber is a qualified two-thirds majority. By requiring a qualified majority, the political opposition is ensured a voice in the selection of judges regardless of current majorities. In November 2018, Stephan Harbarth, previously a member of the German Bundestag, was elected as a new vice-president of the Federal Constitutional Court. This election received substantial press coverage, with discussions as to whether a former member of parliament who worked as a lawyer has the right profile for this position. This example seems to indicate that the new and open procedure has had a positive effect on public awareness.
To what extent are public officeholders prevented from abusing their position for private interests?
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9
9
Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
8
7
6
7
6
Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
5
4
3
4
3
Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
2
1
1
Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Despite some corruption scandals – the recent ones involving the procurement of masks during the pandemic – Germany performs better than most of its peers in controlling corruption, outperforming countries such as France, Japan and the United States. But it does not perform as well as the Scandinavian countries, Switzerland, Singapore and New Zealand.
Nonetheless, there are a number of issues that have been raised by the Council of Europe’s Group of States against Corruption (GRECO). The recent GRECO compliance report (GRECO 2021) concludes that Germany has satisfactorily implemented or dealt in a satisfactory manner with only three of GRECO’s eight recommendations and therefore the current level of compliance remains “globally unsatisfactory.” Since the publication of this compliance report, further progress has been achieved with the enactment of the Lobbying Register Act in March 2021, which requires representatives of special interests to register as such. Deficiencies cited include the lack of ad hoc disclosure rules designed to prevent conflicts of interest with regard to members of parliament acting on issues under parliamentary consideration. In terms of ensuring the transparency of federal judges’ secondary activities, Germany is also not in compliance with GRECO recommendations.
Citations:
GRECO (2021): Council of Europe, Group of States against Corruption, Fourth Evaluation Round, Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors, Adopted 25 March 2021.
Nonetheless, there are a number of issues that have been raised by the Council of Europe’s Group of States against Corruption (GRECO). The recent GRECO compliance report (GRECO 2021) concludes that Germany has satisfactorily implemented or dealt in a satisfactory manner with only three of GRECO’s eight recommendations and therefore the current level of compliance remains “globally unsatisfactory.” Since the publication of this compliance report, further progress has been achieved with the enactment of the Lobbying Register Act in March 2021, which requires representatives of special interests to register as such. Deficiencies cited include the lack of ad hoc disclosure rules designed to prevent conflicts of interest with regard to members of parliament acting on issues under parliamentary consideration. In terms of ensuring the transparency of federal judges’ secondary activities, Germany is also not in compliance with GRECO recommendations.
Citations:
GRECO (2021): Council of Europe, Group of States against Corruption, Fourth Evaluation Round, Corruption Prevention in Respect of Members of Parliament, Judges and Prosecutors, Adopted 25 March 2021.