German media law expert Dieter Dörr discusses a landmark constitutional decision that lays out governance arrangements to protect the independence of the country’s public broadcasters from state intervention. FRIENDS arranged the translation of this report from the original German.
On March 25, 2014 the Federal Constitutional Court announced its long-awaited ruling on revisions to statutory compliance with reference to the Interstate Treaty of the ZDF (Zweites Deutsches Fernsehen, i.e. Second German Television).1 In its ruling, the court found that the acts of assent and approving resolutions of the Laende2 are largely inconsistent with broadcasting freedom guaranteed in Art. 5, Par. 1, Sentence 2 of the Constitution. The ruling is of great importance because it is the first time that the Federal Constitutional Court has dealt in depth with the issue of the extent to which guidelines pertaining to the organisation of supervisory committees in the public broadcasting service are inherent in the imperative of protecting pluralism and in the required separation of state and public media. In addition, since constitutional decisions, including their supporting arguments, are binding, the basic statements therein are important not only to the future constitution of ZDF broadcasting councils, but also to those of Deutschland Radio and the ARD public broadcasting corporations of the Laender.3
Currently, the organisation and service of the ZDF are mainly determined by the ZDF-Interstate Treaty (ZDF-Staatsvertrag or ZDF-StV) in the version of the Twelfth Amendment to the Interstate Broadcasting Treaty. Among other things, this mandates that the ZDF include three entities: the Television Council (Fernsehrat), the Administrative Council (Verwaltungsrat), and the Director (Intendant). The Director as the head of the Board of Directors (three to five members of senior management) is the central pillar of the institution; he or she manages it and is responsible for programming. The Television Council advises the Director on programming, establishes guidelines for ZDF broadcasts, and monitors their compliance. The Administrative Council monitors the management performance of the Director, who is primarily responsible for the institution’s finances. In addition, the Director appoints the Programme Director, the Editor-in-Chief, or and the Executive Director, but only in agreement with the Administrative Council. The Director is personally elected by the Television Council. The composition of the Television Council and Administrative Council, and the appointment of individual members, are determined in Section 20 ff. ZDF-Interstate Treaty.
The Television Council has 77 members. These consist, as follows, of: one representative of each of the 16 Laender, three representatives of the federal government, 12 party representatives according to their proportional representation in the Bundestag, two delegates each from the Protestant and Catholic Churches, one delegate from the Central Council of Jews in Germany, 25 delegates from unions, federations, chambers, committees and associations, which are individually legally designated; and 16 delegates from diverse community areas, as determined by the Minister Presidents of the Läender and without further specifications.
The 25 delegates from unions, federations, chambers, committees and associations are chosen by the Minister Presidents from lists of three proposed candidates established by the respective groups. Only delegates from the Laender and the federal governments may be simultaneously members of both the Television Council and a federal or Laender government. The term of office is four years; however, delegates of the state and federal governments, parties, churches and the Central Council of Jews in Germany can be recalled from their appointed office.
The Administrative Council has 14 members. It is composed of five delegates from the Laender – including a delegate from Rhineland-Palatinate, where the ZDF is located – a delegate of the federal government and eight members to be determined by the Television Council, who may not belong to a government or a legislative body.
In November 2009 the re-appointment of the former ZDF Editor-in-Chief, Nikolaus Brender, failed because the Director could not achieve the required consensus with the Administrative Council.4 After unsuccessful efforts to initiate statutory compliance revisions by the Member of the German Parliament Tabea Rößner of the parliamentary fraction Alliance90/The Greens – which did not succeed because it was impossible to unite a quarter of the Members of Parliament behind the application – the Rhineland-Palatinate Government and the Senate of the Free and Hanseatic City of Hamburg each sued in the Federal Constitutional Court to review the statutes.5 They objected to the influence of the state on the Television Council and Board of Directors, which they considered excessive, and asserted that the approving act and decisions by the States, which the ZDF-Interstate Treaty incorporated into respective Laender laws as Article 3 of the Interstate Treaty on Broadcasting in United Germany of August 31, 1991, were irreconcilable with the constitutional right of freedom of broadcasting as per Art. 5 Para. 1, Sentence 2 of the German Constitution.6
The application was largely successful. The Federal Constitutional Court found that large portions of the approving act and decisions of the Laender, transferring regulations of the ZDF-Interstate Treaty to Laender laws, were irreconcilable with Art. 5 Para. 1 S. 2 of GG.
For the first time, the Federal Constitutional Court ruling addressed in detail the question of to what extent provisions for the composition of public broadcasting service committees derive from broadcasting freedom and the separation of state and public media and the ensuing protection of pluralism. In this regard it developed a set of requirements that are far-reaching, but carefully considered.
Although in multiple decisions the ruling builds on the understanding of broadcasting freedom as a freedom that serves,7 nevertheless it derives new and hence not necessarily expected consequences for the understanding of protecting plurality and arm’s length from the state, which has significant impact on committee composition.
2. Serving Broadcasting Freedom: A Point of Departure
The basis for the entire review of broadcasting freedom is Art. 5 Para. 1 S. 2 GG. Following its previous jurisprudence, the court emphasizes its ‘service function’ with respect to forming individual and public opinion. According to this view, Art. 5 Para. 1 S. 2 GG contains the mandate to guarantee broadcasting freedom through a system to ensure the expression of as broad and complete as possible8 a pluralism of existing opinions. It is the legislators’ duty to structure this system. At this juncture, the focus is first of all the protection of pluralism, which plays a key role in the entire decision. In the view of the judges in Karlsruhe, the public broadcasting service continues to play a prominent role in ensuring the diversity of opinion in the dual broadcasting system. As a counterbalance to private broadcasters, its task is to create a range of services that follow a different rationale in decision-making than market incentives and hence open up the possibilities of programme planning. It should contribute to content diversity in a way that the free market alone cannot ensure. In any case, it is also qualified to do this because it is primarily publicly financed. As the Federal Constitutional Court emphasized, on this basis it can and should contribute its own ideas and perspectives to diversity of content, and especially draw attention to those aspects that go beyond standard mass audience programmes or endow them with a special character. As the Federal Constitutional Court highlighted, due to its particular importance in shaping opinion and hence also for the functionality of democracy, its mandate is limited not only to a minimum provision or filling in gaps and niches not covered by private broadcasters, but captures the full breadth of a classic broadcasting mandate, which, in addition to its role in shaping opinion and decision-making and providing entertainment and information, includes cultural responsibility.
Its programme offering must therefore remain open to new public interests or new content and forms and may not be technically limited to a certain stage of development. The Federal Constitutional Court has thereby once again confirmed the security and development guarantee of the public broadcasting service.9
In this context it is essential to underline one thing clearly. The crux of the matter is and remains that the public broadcasting service must fulfil its democratic and cultural mandate decisively and convincingly. Its democratic and cultural mandate is, precisely, central to its legitimacy. This means, for example, that it must report comprehensively on upcoming elections and their significance. As expressed by Paul Kirchhof,10 only the comprehensively informed citizen, conscious of fundamental constitutional values, is and remains capable of democracy.
3. Internal and Pluralistic Organization
Based on its special mandate, the Federal Constitutional Court considers it appropriate to organize the public broadcasting service with an internal and pluralistic structure. In such a model, the influence of the various forces involved are to be conveyed internally within the framework of collegial bodies with the substantial involvement of civic society. In order to do justice to the protection of pluralism, the composition of these collegial bodies must include persons with the broadest possible variable perspectives and ranges of experience from all parts of the community. The legislator must make sure that the official or other perspectives and points of view that drive government policy development are not predominant, but rather that the discussion includes a significantly broad range of points of view from multiple social forces. The Senate also firmly insists that the members of such collegial bodies or ‘councils’ are not representatives of particular interest groups, but rather advocates for the community.
4. Protecting Pluralism and Arm’s Length from the State
The basis of the ruling lies in a certain understanding of distance from the state and its relationship to the protection of pluralism. Among the diverse points of view regarding who should be represented on broadcasting councils, this is expressed by the Federal Constitutional Court’s consideration that representatives of the “State” and the Parties also belong. The Senate thus professes that there may and should be independent members, hence a civil bench, as well as government and government-related members, hence a state bench. The voices of committee representatives from the Federal and Laender levels, from governments and oppositions, mayors and district administrators convey relevant opinions and factual information, and are therefore part of a broad range of points of view that should be represented on the councils. On the other hand, it is important to prevent the political exploitation of broadcasting. Therefore the proportion of government and government-related representatives on the councils must be limited. In this respect, the requirement of the separation of state and public media is understood as a subset to protecting pluralism and the concept of complete or only broad freedom of broadcasting as is expressed in the dissenting opinion of Constitutional Judge Paulus11 was conceptually given short shrift.12 This has further consequences. Since arm’s length from the state is a subset of protecting pluralism, government and government-related representatives must reflect the federal and political party spectrum.
5. Individual Provisions for the Composition of Councils
The Senate developed a set of guidelines, which limit the creative leeway fundamentally given to legislators’ in structuring public service broadcasting.
5.1. One-Third Threshold for State and State-Related Members
In its ruling the Federal Constitutional Court has determined a clear numeric limit for state and state-related members. Their proportion in the Television Council and Administrative Council and their committees may not exceed one-third by any account. This is consistent with the view of the Senate that the influence of state and state-related members on the supervisory boards of broadcasting corporations is to be limited. In the first instance, this signifies that state and state-related members may not implement or block decisions in the committees as a unit. Decisive influence of state and state-related members is only sufficiently precluded if each member is faced with at least two independent members and thus the proportion of state and state-related members does not exceed one third of the legal members of the respective council. It is worthy of debate whether this clear numerical limit represents a constitutional authority. An alternative is an at least plausible regulation supported by the Bavarian state constitutional example (Art. 111a Para. 2 S. 3 BayLV).13 In addition, the clear one-third threshold for all councils has the great advantage of great clarity and legal certainty. Finally, there are no plausible arguments for any variation with a higher state quota for the Administrative Councils.14
5.2. Attribution to the “State Bench”
In order to determine who is to be considered a state and state-related member the Senate is firmly convinced that a functional approach must be laid out. In this respect it depends whether the person in question has state/political decision-making authority or is competing for public office or a related mandate and is thus particularly subject to broader public approval.15
Therefore, in addition to government members, civil servants, elected officials with leadership functions, especially mayors or district administrators, and persons appointed to the supervisory board as communal representatives and members of supervisory boards delegated by political parties are to be considered government-related, since the latter are inevitably involved in state/political decision-making and involved in democratic competition for office and mandate.16 In contrast, persons who are delegated to supervisory boards by universities, from the judiciary or functional self-administration, such as Chambers of Industry and Commerce, do not count as state or state-related members according to this view.
5.3. The ‘State Bench’ and the Obligation of Pluralism
The Court emphasizes that requirements for protecting pluralism also affect the selection of state and state-related members. This is an exact reversal of an argument brought forward to defend a higher state quota.17 Federal and political party differences explicitly do not justify setting the proportion of state and state-related members at the ZDF at significantly over a third. In point of fact, the state and state-related members whose total proportion is to be limited to a maximum of one third must reflect the federal and political party diversity: Thus it follows explicitly that smaller political organizations are to be considered for the composition of the “state bench”. The legislator must also take care to include the most varied expressions of further perspectives into consideration – for example of a federal or functional nature.
With regard to the Television Council and the Administrative Council, the Senate came to the conclusion that the maximum of one third had clearly been exceeded on both councils.
5.4. Arm’ Length from the State and the Composition of the ‘Civil Bench’
The Federal Constitutional Court was not content with these requirements for the “state bench”: Rather the Senate made it clear that with regard to the “civil bench”, advisory boards are to be consistently composed at arm’s length from the state. According to the Federal Constitutional Court’s conclusive opinion, the executive may have a decisive influence neither on the selection nor the delegation of independent members. Freedom of selection in the framework of appointments is thus to be ruled out for the executive. Insofar as the selection of members is entrusted to particular social groups, at best their suggested delegates may only be rejected in exceptional cases, if special legal reasons are presented.18
Therefore the very appointment by the Minister Presidents of the 16 committee members named in § 21 Para. 1 r ZDF-Interstate Treaty, infringes against arm’s length from the state. In contrast, § 21 Para. 3, 6 ZDF-Interstate Treaty – the Minister Presidents’ right to choose from the three suggestions proposed by delegated associations and organisations – is interpreted as being constitutional. This regulation is therefore interpreted so that the Minister Presidents are fundamentally bound by the respective suggestion lists and deviating from them is only possible if special legal grounds are presented.19
In addition, the requirement for the separation of state and public media must be secured through personal prerequisites that are valid for members of the “civil bench”. The legislator is charged with the creation of compatibility regulations, which ensure that members delegated to the council by the “civil bench” are sufficiently at arm’s length from state/political decision-making. These regulations cover members of governments, parliamentarians, political officials or elected officials in leading functions and those who are in key positions in a political party. The specific definition of which persons are in key positions in a political party is up to the legislator. However, the Federal Constitutional Court has indicated that it is conceivable to exclude offices above the level of districts or counties.
5.5. Protecting Pluralism and the Composition of the ‘Civil Bench’
Furthermore, the regulation of the selection and appointment of members at arm’s length from the state must also take into account the objective of protecting pluralism. Hence, it is important to counteract a dominance of majority perspectives and a “petrifaction” in the composition of councils. The Federal Constitutional Court points out that supervisory boards can only reflect the community imperfectly and inaccurately, which is why the legislator was granted broad freedom in the composition of the councils. However, in accordance with the requirements of the ruling, if the legislator sees a danger that the right of appointment and the granting of group-related delegation rights usually falls to the largest and best-established associations, it can counter this by drafting a functional arrangement. The legislator must anticipate a dynamic arrangement which counters immobility on councils. The Laender must therefore use ingenuity and creativity to come up with appropriate solutions in this respect.
5.6. Safeguarding the Independence of Council Members
According to the applicable opinion of the Federal Constitutional Court, it is imperative to safeguard the personal freedom and independence of the council members within the framework of the protection of their mission. With respect to performing their tasks for broadcasting corporations, it is imperative that council members be free from directives, and that they only be recalled for important reasons.
The existing ZDF-Interstate Treaty also does not meet these requirements, too. Although according to § 21 Para. 9 S. 1 ZDF-Interstate Treaty council members are free from directives, the delegates from the Laender, the federal government, the parties and religious communities can be recalled without cause.
5.7. The Requirement of Transparency
Finally, the Senate required transparency in order to guarantee a practicable composition of supervisory councils and control of public service broadcasting across all of society. In its ruling, the Federal Constitutional Court also reacts to the demand for more transparency on councils by referring to the lack of transparency in the composition, group formation and negotiation processes in insider circles. Transparency demands that information on organisational structures, the composition of councils and committees, as well as upcoming agendas be freely available and that, at least in principle, minutes of meetings be available in a timely manner or that the public is otherwise substantially informed of the subjects and conclusions of deliberations.
In this respect, the Senate finds that regulations determining a minimum of transparency in the work of the Television Council are lacking in the current ZDF-Interstate Treaty.
6. The Tenor of the Ruling and its Consequences
The Federal Constitutional Court has not invalidated the regulations it holds to be unconstitutional, but has only determined their incompatibility with the German Constitution. This assessment is accompanied by the arrangement that, until such time as they are revised, the regulations may be used on a transitional basis. This was absolutely appropriate, because the immediate invalidation of these norms would eliminate the basis for the protection of the outstanding goods of common welfare. Thus the freedom of broadcasting is better served by accepting a transitional unconstitutionality than by revoking the current standards. However, the Federal Constitutional Court required the Laender to revise the regulations to comply with constitutional requirements by June 30, 2015. This was a tight deadline. In so doing, the Federal Constitutional Court clearly expressed its unwillingness to accept a state of unconstitutionality for a longer period of time. This was also illustrated by a further circumstance: the Federal Constitutional Court refrained from imposing requirements for the transitional period on the basis of § 35 BVerfGC. However, it did point out unequivocally that it was not precluding a subsequent enforcement order ex officio, if appropriate. This exceptional notice was arguably to underline that a violation of the deadline can have far-reaching consequences.
The ruling’s consequences go beyond the June 30, 2015 deadline for undertaking far-reaching changes to the ZDF-Interstate Treaty. Due to the binding effect of constitutional rulings anchored in § 31 Para. 1 BverfGG, which includes the supporting arguments, the Laender are, in fact, obliged to review the regulations on the composition of the councils of German regional broadcasters and Deutschland Radio to examine whether they correspond to these requirements. If and insofar as this is not the case, they must make the necessary changes.
7. The Seventeenth Amendment to the Interstate Broadcasting Treaty: A Preliminary Assessment
With the 17th Amendment to the Interstate Broadcasting Treaty,20 which was signed June 18, 2015 and is to take effect January 1, 2016, although it is still pending approval of some Laender parliaments, the Laender have attempted to fulfil the differentiated and multiple requirements of the Federal Constitutional Court. This has largely succeeded. In regard to two provisions, however, further problems have arisen.
Changes in §§ 21 Para. 1, 24 Para. 1 ZDF-Interstate Treaty ensure that the one-third threshold for the “state bench” is observed. It is thereby not surprising that the maximum limit of one third is exhausted at 20 members attributed to the government with a total of 60 members in the Television Council, and four members attributed to the government of 12 members on the Administrative Council.
In addition, the newly revised §§ 21 Para. 1 and 24 Para. 1 ZDF-Interstate Treaty ensures that representatives of the executive neither have a decisive influence in the selection nor the appointment of independent members. This is a particular consequence of the interaction of paragraphs § 21 Para. 1 q and § 21 Para. 3 ZDF-Interstate Treaty for the Television Council, as well as § 24 Para. 1 b ZDF-Interstate Treaty for the Administrative Council. In accordance with § 21 Para. 1 q ZDF-Interstate Treaty, they assure that in future 16 representatives will be appointed to the Television Council by associations and organisations determined according to state law, and that the Television Council may not elect ‘state’ members to the Administrative Council.
Furthermore, as a consequence of the incompatibility regulation of § 19a Para. 3 ZDF-Interstate Treaty, no representatives attributable to the state may be assigned to the “civil bench”. In addition, the independence of board members and their position as trustees of the community are guaranteed by § 19a Para. 1 ZDF-Interstate Treaty. The regulations in § 23 Para. 5, 6 ZDF-Interstate Treaty also comply with the requirement for transparency.
However, it remains doubtful whether the demand of the Federal Constitutional Court to counteract a “petrification’ of the boards and to anticipate a form of dynamism, has been sufficiently taken into account. In this respect § 21 Para. 7 ZDF-Interstate Treaty merely requires that regulations regarding the composition of the Television Council shall be reviewed every two terms of office. However, the Federal Constitutional Court also emphasized the legislators’ freedom in the composition of councils. In addition, with respect to these demands, it is doubtful whether such an optimisation requirement should be precise and legally actionable,21, as Matthias Cornils expresses it.
There are even more serious reservations regarding the multiple manifestations of state and party influence in the composition of the government bench suggested by the Federal Constitutional Court. The Federal Constitutional Court mandates comprehensive inclusion of federal and political party trends with the inclusion of smaller parties in particular. To be sure, it must be conceded that the chances of implementing this requirement depend on the total size of the committee and to what extent the legislator is entitled to an assessment prerogativ22 Given the total size of the Television Council, it is difficult to justify that 20 members of the government bench should be made up exclusively of members who are linked to the state and delegated by the Laender governments, the federal government, the districts and the cities, with the result that political parties are not taken into consideration at all. It is precisely the different political parties that reflect the plurality of viewpoints. In this respect, it would have made sense to reserve some part of the government bench for members to be delegated by the parties. This would also not have been difficult to achieve. It could have required that the federal government only send one and the Laender eight representatives to the Television Council, related to a rolling system, which would ensure that half of the (16) Laender had input during every second term of office. With this measure alone, it would be possible to reserve nine members of the state bench for the political parties, which would have made it possible to take smaller parties into account. Accordingly it should be noted that there are definitely doubts as to whether the requirement for multiple representation of state and party political influence is sufficiently taken into account through the anticipated appointment of the “state bench” in the Television Council as per Section 21 Para. 1 a-c ZDF-Interstate Treaty.
Burmeister, Joachim: Medienmarkt und Menschenwürde, in: EMR (Ed.), EMR-Dialog, München, 1992, p. 55ff.
von Coelln, Christian: Stellungnahme der Bayerischen Staatsregierung, der Hessischen Landesregierung, der Niedersächsischen Landesregierung, der Regierung des Saarlandes, der Staatsregierung des Freistaates Sachsen und der Landesregierung Schleswig-Holstein vom 28. 6. 2011, in: von Coelln, Christian/Hain, Eberhard (Eds.): Der ZDF-Staatsvertrag vor dem Bundesverfassungsgericht, Dokumentation der Schriftsätze und des Urteils vom 25. März 2014, Baden-Baden 2015, p. 85ff.
Cornils, Matthias: Entscheidungsanmerkung, BVerfG, Urt. v. 25. 3. 2014 – 1 BvF 1/11, 1 BvF 4/11, in: K&R 2014, p. 386ff. (2014a)
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Degenhart, Christoph: Bonner Kommentar, GG, Art. 5 Abs. 1 und 2, Rn. 623
Degenhart, Christoph: Ein (zu kleiner?) Schritt in die richtige Richtung - Kommentar zum BVerfG-Urteil vom 25. 03. 2014 - 1 BvF 1/11, BvF 4/11, in: K&R 2014, p. 340f.
Dörr, Dieter: Die Mitwirkung des Verwaltungsrats bei der Bestellung des ZDF-Chefredakteurs und das Problem der Gremienzusammensetzung, in: K&R 2009, p. 555ff.
Dörr, Dieter: Rechtsprechungsbericht BVerfG, 25. 03. 2014 - 1 BvF 1/11 u. 1 BvF 4/11, in: JuS 2014, p. 664ff.
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* This article is based on a speech at the 14th Mainz Media Forum “Independence from the State and Pluralism, the Ruling of the Federal Constitutional Court on the Composition of Supervisory Boards, and its Consequences”, on May 12, 2014 in Mainz, which is reproduced in “Funkkorrespondenz” 21/2014, 6 ff. It will be published in Kops, Manfred (ed.): Der Rundfunk als privates und öffentliches Gut. 25 Jahre Institut für Rundfunkökonomie, Vistas Verlag, Leipzig 2016, pp. 321 - 333
** Germany is a federation of states or ”Laender”; the latter term is used in this article to avoid confusion with the word state in relation to arms’ length and the “state bench”.
1 Cf. BVerfGE 136, 9; regarding the content and assessment of the ruling, see Cornils 2014a, 386 ff.; Cornils 2014b, 447 ff.; Degenhart 2014, 341 f.; Dörr 2014, 664 ff.; Hesse/Schneider 2014, 881 f.; Kirchberg 2014, 1137 ff.
2 Translator’s note: Germany is a federation of states or ‘Laender’; the latter term is used in this article to avoid confusion with the word ‘state’ in relation to ‘arm’s length’ and the ‘state bench’.
3 Regarding the consequences for the MDR-Stv, see for example Zimmermann 2014, 273 ff.
4 Cf. hereto Dörr 2009, 555 ff.
5 See the application of the State of Rhineland-Palatinate in Hain 2015, 15 ff.
6 The “Grundgesetz” or basic constitutional law, henceforth referred to as “GG”.
7 Cf. thereto BVerfGE 57, 295 (319); 83, 238 (295); 87, 181 (197); thereto Dörr/Schwartmann 2014, Rn. 170; Degenhart, Art. 5 Abs. 1 and 2, Rn. 623; on the fundamental service character of broadcasting freedom Burmeister 1992, 38 (55 ff.); Stock 1985, 325 ff.; critical to this conception Hain 2007, 21 (22 ff.); Fink 1992, 805 (806 ff.).
8 Cf. BVerfGE 136, 9 (28); so as already BVerfGE 119, 181 (214); 121, 30 (50).
9 BVerfGE 136, 9 (29).
10 Cf. Kirchhof 2001, P. 9 (14).
11 Cf On this dissenting opinion BVerfGE 136, 9 (60 ff.).
12 A more detailed analysis thereto Cornils 2014b, 447 (449).
13 So also Dörr 2015, 183 (191); tendentially also Hahn 2010, 186 f. und 286.
14 Cf. Cornils 2014a, 447 (450).
15 Cf. Cornils 2014a, 447 (450).
16 So already BVerfGE 121, 30 (53 ff.); in detail thereto Huber 2009, 497 (507 u. 509).
17 Cf. von Coelln 2015, 67 (85 ff.)
18 Cf. Cornils 2014a, 447 (451).
19 Cf. Cornils 2014a, 447 (451).
20 Cf. State Treaty 2015
21 Cornils 2014b, 447 (451).
22 Ibid. S. 450 f.