The parties are in dispute about the making available of court rulings for purposes of publication.

The claimant is a publishing house providing an information service with practice-oriented advice on tax saving. The claimant tried without success to obtain from the court administration of the defendant finance court (Finanzgericht) those rulings of the court that are made available to the summoned third party to attend the proceedings as a party whose rights may be affected (hereinafter summoned third party) - a competitor - for publication in the specialist journal "EFG" published by it. The defendant refused to comply with the request of the claimant since in its view publication of court rulings was based on private initiatives of the judges. The court administration could not influence this. It did not publish any rulings itself.

The claimant then filed an action that was based in essence on the right to equal treatment. The Administrative Court (Verwaltungsgericht) upheld the action insofar as it obliged the defendant to send rulings at the same time as they are sent to the [publisher of] the specialist journal "EFG", while denying an obligation for the same treatment as juris GmbH and dismissed the action in that respect.

The Higher Administrative Court (Oberverwaltungsgericht) dismissed the appeal on points of fact and law by the defendant and the summoned third party. The appeal on points of law by the summoned third party remained unsuccessful.

The appeal on points of law is admissible but unfounded. The lower instances upheld the action based on essentially correct reasons.

1. (...)

2. The appeal on points of law is, however, unfounded. The challenged judgments are not based on a violation of federal law. In accordance with the stipulation added by the claimant for clarification in its application for appeal on points of law, the claimant is entitled to the right asserted in its action for the issuance of an administrative act (Verpflichtungsklage).

a) The complaint of the summoned third party that the lower instances did not summon the judges who are employed by the defendant and who also act on behalf of the summoned third party on their private initiative, as third parties, is not justified. (...)

b) The lower instances correctly assumed that all courts, and therefore also all instances of finance courts, have the task under federal constitutional law of making the rulings of their panels accessible to the public. To this extent, publication of court rulings is a public task. It covers all rulings in the publication of which the public is or may be interested. When fulfilling this constitutional task, the court administration - like any administration - has to observe the obligations under public law applicable to all forms of administrative action. In the present case, this specifically includes the neutrality obligation of the state when dealing with the publishers of press products that are in journalistic competition with each other, including the strict obligation to treat them equally (Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 80, 124, 133 et seq.).

aa) In line with the nearly undisputed opinion in jurisprudence (...) and literature (...), the Senate also assumes that there is a legal obligation on court administrations to publish court rulings that are worthy of being published.

This obligation follows from the rule of law principle, including the obligation to grant access to judicial review, the requirement of democracy and also the principle of the separation of powers: Court rulings specify legal provisions; and they also further develop the law (see also section 132 (4) of the Courts Constitution Act (GVG, Gerichtsverfassungsgesetz)). For these very reasons publication of court rulings can be compared in importance to the promulgation of legal norms. The citizen needs to be able to find out reliably what his or her rights and obligations are, especially in an increasingly complex legal system; the opportunities and prospects of individual legal protection must be roughly predictable for the citizen. This is not possible without the jurisprudence being adequately published. In addition, in a democratic state governed by the rule of law, and particularly in an information society, jurisprudence must face public criticism in the same manner as the other state powers. But this is not only about the possibility of questioning a certain trend in jurisprudence in public as an undesirable development. The citizen must also have access to the relevant rulings so that he or she can have an ability at all to impact what he or she considers is a concerning legal development with the aim of achieving a change (in the law). Both the requirement of democracy as well as the principle of reciprocal inhibition of power inherent in the principle of the separation of powers require that it must also be possible, by means of shaping public opinion, to initiate a parliamentary correction of the results by which the judiciary contributes to the development of the law. Last but not least, the publication of court rulings that enables an academic debate also serves the proper functioning of the administration of justice in terms of the task of further developing the law. In this constitutional setting, no special legal provision is necessary in order to create the obligation that courts have to make their rulings accessible to the public and to bring them to the public's knowledge; such a legal provision would have only declaratory character.

The court of appeal correctly also referred to section 5 (1) of the Act on Copyright and Related Rights (UrhG, Urheberrechtsgesetz) in this context. Insofar as "rulings and official headnotes" are exempt there from copyright protection and are declared to be in the public domain, this does not lay down a publication obligation though (...). However, it is indeed assumed there - even if only tacitly - that such an obligation is incumbent on the court administration. Court rulings and official headnotes cannot enter the public domain without the due participation of court administration and the judges in the preparation of copies of rulings and official headnotes that may be disclosed (for the definition see also Rulings of the Federal Court of Justice in Civil Matters (BGHZ, Entscheidungen des Bundesgerichtshofs in Zivilsachen) 116, 136). For this reason, the legislature must have thought about and specifically presumed the existence of corresponding obligations when drafting this provision.

In addition, this publication obligation is also based on the guiding principle of procedural law that court proceedings and judgment pronouncements must be public (see, among others, section 55 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) in conjunction with sections 169, 173 GVG), but the obligation also goes above and beyond this principle - as stated above.

bb) In principle, the publication obligation also applies to the different court instances and in the present case in particular to the higher courts. In a branch of the court system with only two levels, the finance courts must be deemed equivalent to the higher courts. The question as to whether court rulings are worthy of publication cannot be limited to rulings of the supreme federal courts alone. Admittedly, procedural law assigns the task of deciding questions of fundamental importance, preserving legal unity and further developing the law to these courts in a prominent way. However, by no means all fundamental legal disputes or those touching issues of public interest reach them (...). Worthiness of publication due to the "essentiality" of a ruling is moreover not limited to rulings that have fundamental importance in the sense of the law governing appeals on points of law. Specifying generally recognised legal principles or applying them to facts that had until then been less to the fore may also be an independent contribution to the further development of (judge-made) law. This is worthy of publication even if the application of the law seems, as it were, to be obvious for the adjudicating judge. This is because worthiness of publication is assessed from the perspective of those for whom the publication is intended. What is decisive therefore is the actual or presumed public interest and the interest of those who wish to request legal protection in the corresponding matters.

cc) Since there is a lack of a legal provision in this regard at all, there is also a lack of provisions concerning the way this publication task must be performed. Certainly, it does not have to be performed by court administration in each and every detail in the forms of administrative action under public law. (...) However, court administration may not leave things alone to such a degree that court administration no longer has any influence on the comprehensive fulfilment of the task and any control over compliance with existing obligations under public law. In particular, court administration may not relinquish to a private person the tasks of safeguarding the personality rights of the parties to the proceedings, data protection and tax secrecy (section 30 (2) no. 1 (a) of the Fiscal Code (AO, Abgabenordnung)) and the task of ensuring strict equal treatment when disclosing the information - at least not without exercising control. What comes into consideration therefore, at most, is a two-level procedural approach where the actions based on public law on the first level may be followed by private actions on the second level within the framework of the actual publication process.

On the first level, actions of court administration based on public law initially are indispensable insofar as actual court rulings worthy of publication are selected. This, in turn, may be done in two different ways: On the one hand, an "official selection" must be made, namely from the perspective of the judge dealing with the matter or the panel he or she belongs to. On the other hand, court administration is expected to supplement the selection by rulings in the publication of which there is an obvious public interest. This is generally the case when corresponding requests come from the public. Usually, this also applies in case of a private request by a judge for purposes of private publication.

Necessary actions based on public law on the first level also include the preparation of a version that may be disclosed, i.e. a version of the rulings that are intended to be published, in particular, one that is anonymised and neutralised. In this case it is not possible to transfer the tasks to private third parties for the very reason that typically forwarding the original ruling to third parties would already mean a violation of personality rights. Action based on public law on the first level ends with precautions concerning equal treatment when disclosing rulings to third parties for purposes of private publication. These precautions are necessary because court administration has to observe special guarantees under public law at least vis-à-vis the publishers of press products (see c) below on this issue).

How court administration proceeds after this first level of necessary actions based on public law follows from exercising its discretion in accordance with legal obligation. Court administration may provide by way of a corresponding organisational act for a second level where it makes use of the private initiative of third parties, including any judges working at the court, in order to fulfil the tasks more efficiently, save costs or facilitating administrative procedures. In particular, the production of a version of the ruling suitable for publication and the further process of publication as such may take place under the rules of private law. In that case, this does not take place based on an original exploitation right of third parties but rather according to the organisational act.

c) The obligation of court administration to treat everyone equally when disclosing rulings to private third parties for purposes of publication in specialist journals corresponds to the right of the press media to be supplied simultaneously with rulings worthy of publication. This too was correctly held by the lower instances.

aa) Legal bases of the right to equal treatment in journalistic competition (BVerfGE 80, 124, 134) are article 3 (1) of the Basic Law (GG, Grundgesetz) in conjunction with article 5 (1) second sentence GG. This right is the counterpart of the neutrality obligation of the state when dealing with the publishers of press products that are journalistic competitors (BVerfGE 80, 124, 133 et seq.).

bb) According to the facts established in the present case, the claimant has an actual right to equal treatment with the summoned third party; this includes the judges involved in the preparation of the private publication on behalf of the summoned third party. Based on the facts established by the court of appeal, the parties are in dispute about making available rulings, some of which are published in several specialist journals. For this reason alone, they must be considered to be worthy of publication. (...) Questions related to the substantive worthiness of publication (...) are irrelevant to the right that is asserted. Neither does this right require that each ruling published in the journal "EFG" must be worthy of publication with regard to its content nor that upon its enforcement all rulings of the Lower-Saxon Finance Court that are worthy of publication concerning its content are covered. The court of appeal was allowed instead to derive the worthiness of publication of all the rulings in question without any additional review for the simple reason that judges of the court request them for purposes of (private) publication and forward them to the summoned third party. (...)

cc) The defendant cannot hold against the asserted right that the publication interests of the claimant must stand back behind those of publishers who publish specialist journals with academic standard. The present case does not concern the management of limited resources. Identical rights of different interested parties can instead be easily fulfilled multiple times and simultaneously. Making a selection that completely excludes third parties from the supply of rulings that are worthy of publication or at least excludes them to a considerable extent is therefore excluded. Also with regard to the point in time of the supply, privileged treatment of the summoned third party cannot be justified based on the academic standard of its publication media, which could be relevant in another context. The lower instances have correctly referred to the fact that the level of academic standard is not a formal criterion that is consequently neutral when it comes to an opinion and is therefore in itself not sufficient to justify unequal treatment of different publication media concerning the supply of information (BVerfGE 80, 124, 134). The fact that information in the form of court rulings is concerned here does not justify any other legal assessment. The deciding Senate that is competent for press law now does not adhere to the contrary view of the 7th Senate of the Federal Administrative Court (see decision of 1 December 1992 - BVerwG 7 B 170.92 - (...)).

d) Enforcement of the right also does not conflict with any third party rights. It is possible in fact and in law without further ado.

aa) The question of whether the summoned third party may rely on the rights of third parties may remain open. In any case, no rights of judges of the court are violated by the obligation of the defendant pronounced in the judgment. Their possibilities for publishing rulings privately are not limited above and beyond any limitations that exist anyway. In particular, they are not placed in a worse position than would be the case for any other private interested party; this is because they can, like such other private interested party, request the rulings of their court that are intended for publication and can exploit these for academic purposes as the case bay be.

bb) The rights of the summoned third party also do not conflict with the obligation pronounced in the judgment. The defendant is not thereby forced to ignore copyrights of the summoned third party in an editorial selection of rulings made for it by having to make this selection available to the claimant in its entirety and unchanged in the draft phase. Based on the pronouncement of the judgment, the defendant is not obliged to send to the claimant only those rulings that the defendant is also making available to the summoned third party. The defendant is instead free to continue to also send all other rulings of the Lower-Saxon Finance Court worthy of publication of which the defendant becomes aware to the claimant as a permanent subscriber - in line with its original request -, as already done (...), i.e. in a neutralised version, unedited and simultaneously to sending it to other press media. The defendant might still be entitled to reimbursement of costs in this respect, as the case may be. The pronouncement of the judgment therefore does not force the defendant to ignore the rights of the summoned third party or to provide unequal treatment with publishers of other specialist journals; nor do the judges who wish to publish privately need to be instructed to notify the specialist journal intended for this purpose.