CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 4 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                    AS TO THE ADMISSIBILITY OF                     Application No. 9675/82                   by Freie Rundfunk AG i GR                   against the Federal Republic of Germany             The European Commission of Human Rights sitting in private on 4 March 1987,   the following members being present:                   MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mr.   F. MARTINEZ                 Mr.   H. C. KRÜGER Secretary to the Commission           Having regard to   -        Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   -        the application introduced on 3 December 1981 by Freie Rundfunk AG i Gr against the Federal Republic of Germany and registered on 1 February 1982 under file N° 9675/82;   -        the Commission's decision of 17 October 1985 that the respondent Government should be invited to submit written observations on the applicant company's complaint under Article 10 of the Convention;   -        the Government's observations of 6 March 1986;   -        the appalicant company's reply of 13 May 1986;             Having deliberated;           Decides as follows:         THE FACTS           The facts of the case as submitted by the parties may be summarised as follows:                             I.           In proceedings which lasted from 1967 until 1984, the applicant company - represented by Dr W. Theisen, Rechtsanwalt at Coblenz - claimed a licence to broadcast under Articles 38 et seq. of the Saarland Broadcasting Act (Gesetz über die Veranstaltung von Rundfunksendungen im Saarland) of 7 June 1967.           The course of these proceedings was as follows:   1.       In 1967 the applicant company requested a licence to broadcast.   In November 1971 it instituted proceedings before the Administrative Court (Verwaltungsgericht) of the Saarland complaining that the Land Government had failed to determine the request.   Noting that Article 39 para. 1 sentence 5 excluded any legal entitlement to the granting of a licence ("Ein Rechtsanspruch auf ihre Erteilung besteht nicht") the applicant company also relied on Article 5 para. 1 sentence 2 of the Basic Law (Grundgesetz), which guarantees "freedom of reporting by means of broadcasts".           The Administrative Court dismissed the action (Untätigkeitsklage) as ill-founded on 30 June 1972.   The Court found no error in the exercise of the Government's discretion (Ermessensfehler) and held that the company's claim could not be based on Article 5 of the Basic Law.   2.       In the appeal proceedings the Administrative Court of Appeal (Oberverwaltungsgericht) of the Saarland, on 25 April 1974, held that Art 38 and other relevant provisions of the Act were unconstitutional and referred the case to the Federal Constitutional Court (Bundesverfassungsgericht) under Article 100 para. 1 of the Basic Law.           This provision states:           "If a court considers unconstitutional a law the validity         of which is relevant to its decision, the proceedings shall         be stayed, and a decision shall be obtained from the (...)         Federal Constitutional Court if this Basic Law is held to         be violated.   This shall also apply if this Basic Law is held         to be violated by Land Law (...)"   3.       The Federal Constitutional Court having declared this reference inadmissible on 24 March 1976 (BVerfGE 42, 42), the Administrative Court of Appeal, by judgment of 20 May 1976, ordered the Land Government to determine the applicant company's request for a broadcasting licence;   this order was based on the assumption that the relevant provisions of the Broadcasting Act were valid.   The Court dismissed the appeal (Berufung) in so far as the applicant company claimed a licence to broadcast under Article 5 of the Basic Law.   It decided that each party should bear half of the costs of the proceedings.   Leave to appeal on points of law (Revision) was refused.     4.       On 26 October 1976 the Land Government refused the applicant company's request for a licence and on 26 November 1976 the applicant company again brought proceedings before the Administrative Court. Written submissions were filed by the applicant company on 1 March 1977 and a hearing was held on 21 August 1978.   The Administrative Court again referred the case to the Federal Constitutional Court.   It held that Articles 38, 40 para. 1, 46 and 46 (b) of the Broadcasting Act concerning private broadcasting were unconstitutional and further stated that, in the absence of a valid legal provision, the applicant company could not claim a broadcasting licence.           The applicant company's appeal (Beschwerde) against this decision was on 29 November 1978 declared inadmissible by the Administrative Court of Appeal.   5.       The Federal Constitutional Court, following a hearing on 24 March 1981, decided on 16 June 1981 that Articles 38 to 46 (e) of the Broadcasting Act were incompatible with Article 5 para. 1 sentence 2 and Article 3 para. 1 (equality before the law) of the Basic Law and therefore null and void in so far as they concerned private broadcasting (BVerfGE 57,295).           The Court held that, under Article 5 para. 1 sentence 2 of the Basic Law, private broadcasting can only be licensed on the basis of specific legislation guaranteeing the freedom of broadcasting.   The Court did not determine the question whether Article 5 of the Basic Law grants an individual right to private broadcasting.   It stated (loc. cit. p. 318):   "With the provisions to be examined the Saarland legislature has on principle authorised private broadcasting.   Hence the validity of the private broadcasting provision in the Saarland Broadcasting Act cannot depend on the questions dealt with in submissions, in experts' reports and in arguments during the oral hearing - as to whether exclusion of private broadcasting in favour of institutions established under public law is still compatible with the Basic Law under present-day and future technical conditions and whether in connection therewith a duty exists under constitutional law to introduce private broadcasting.   The examination to be carried out under constitutional law must rather be restricted to the question whether the Saarland provisions are compatible with the Basic Law.   For an examination of this question there is also no need for a decision on the issue - dealt with in the written and oral submissions - of a basic right to organise private radio broadcasts."   6.       The applicant company thereupon pursued its claim before the Administrative Court.   It argued primarily that the judgment of the Federal Constitutional Court was void and that its claim had to be determined on the basis of the judgment of the Administrative Court of Appeal of 20 May 1976.   In the alternative, it submitted that the Saarland legislator had failed to comply with its obligation, under Article 5 of the Basic Law, to enact new legislation, in conformity with the guidelines formulated by the Federal Constitutional Court, concerning private broadcasting.             The Administrative Court heard the case on 13 November 1981 and dismissed the action.   It held that it was not competent to review the Federal Constitutional Court's judgment, which was binding.   The validity of the relevant provisions of the Broadcasting Act could not, contrary to that judgment, be assumed in favour of the applicant company on the ground that the judgment of the Administrative Court of Appeal of 20 May 1976 had acquired the force of res judicata.   The Administrative Court concluded that the applicant company could not claim a licence under the invalid provisions of the Broadcasting Act of 1967.           Finally the Court examined whether the applicant company could claim a broadcasting licence under Article 5 of the Basic Law and whether the Court in its determination of this claim should act as a "substitute legislator" in view of the Land legislature's inaction since the Federal Constitutional Court's judgment (pages 29 - 34 of the Administrative Court's judgment).   The Administrative Court denied this.   It found inter alia that, even if there was a duty of the Land to legislate as claimed by the applicant company, the time which had elapsed since the Federal Constitutional Court's judgment was not unreasonably long.   In conclusion the Administrative Court referred the applicant company to "the possibility of lodging a constitutional complaint (Verfassungsbeschwerde) against a judgment of last instance dismissing the action".   7.       The applicant company's appeal (Berufung) of 5 February 1982 was heard by the Administrative Court of Appeal on 7 October 1982.   The Appeal Court dismissed the appeal.   It confirmed the Administrative Court's findings that there was no legislation, as required by the Federal Constitutional Court, for private broadcasting, and that the applicant company could not rely on the Appeal Court's judgment of 20 May 1976 ordering the Land Government to determine the application for a licence;   it observed in this connection that, in view of the previous history of the case, the applicant company could not in 1976 have expected a determination in its favour (pages 21 - 23 of the judgment).   The Appeal Court also denied a clear judicial obligation to act as a "substitute legislator" and further stated with reference to Article 5 of the Basic Law that the statutory regulation of radio broadcasting in 1976 - apart from the unconstitutional provisions concerning private broadcasting - had been compatible with the constitution in the light of the technical and financial situation. The Appeal Court then observed (page 27 of the judgment):   "This statutory regulation of private broadcasting can become unconstitutional as a result of a positive change in circumstances.   It may then - as expressly left open by the Federal Constitutional Court (BVerfGE 57, 318) - be necessary for private radio broadcasting to be authorised as well, whether alone on account of Article 5 para. 1 sentence 2 of the Basic Law or on account of additional claims to basic rights under Article 3, Article 5 para. 1 sentence 1 and Article 12 of the Basic Law.   In the light of the statutory position indicated it is obvious that consideration must be given not to a case of absolute omission on the part of the legislature but rather to one of inaction in regard to a constitutional duty subsequently to improve provisions that were originally to be seen as being in conformity with the constitution (see, in particular, BVerfGE 56, 54 - 72, 78 et seq.)."     In applying these considerations to the present case the Appeal Court found no manifest obligation to improve the existing provisions and therefore no basis for referring the matter to the Federal Constitutional Court.   The Appeal Court also drew the applicant company's attention to the possibility of bringing a constitutional complaint concerning the Land legislature's inaction (page 26 of the judgment).   8.       The applicant company then lodged an appeal against the refusal, in the Appeal Court's judgment, of leave to file a further appeal on points of law (Beschwerde gegen die Nichtzulassung der Revision).   In the memorial of 6 December 1982 setting out the reasons for this appeal the company relied on the argument that the judgment of the Appeal Court of 20 May 1976, requiring the Land Government to determine the application for a licence, was final and binding.           This appeal was on 23 December 1983 dismissed by the Federal Administrative Court (Bundesverwaltungsgericht) on the grounds (1) that it did not raise any issue of fundamental importance, (2) that the judgment of the Court of Appeal was not, as alleged, contrary to case- law of the Federal Administrative Court, and (3) that the applicant company's right to a hearing in accordance with the law had not, as alleged, been disregarded by the Court of Appeal.   This decision of the Federal Administrative Court was sent to the applicant on 13 January 1984.                                II.     9.       On 28 November 1984 the Diet of the Saarland adopted a new Broadcasting Act (Landesrundfunkgesetz) which provides both for public (Part A) and private broadcasting (Part B).   Applications for a licence for private broadcasting are to be determined by the Land Authority (Landesanstalt) set up under the new Act (Article 50 para. 2).   They may be filed within a period of at least three months to be fixed by the Authority (Article 39 para. 1).   10.      In June 1985 the applicant company was officially informed that the Land Authority might adjourn its determination of the above period pending an amendment of the Broadcasting Act.   This amendment should be coordinated with negotiations concerning a Länder Agreement on the Reform of Broadcasting (Staatsvertrag zur Neuordnung des Rundfunkwesens).   It could not be foreseen whether and when these negotiations would succeed.   (Letter from the Prime Minister's Office of 28 June 1985)   11.      By letter of 1 October 1985 the Land Authority informed the applicant company that the period for filing applications for licences, once fixed, would be announced in the Official Gazette (Amtsblatt) of the Saarland.     COMPLAINTS           The applicant company invokes Articles 6 para. 1, 10, and 14 of the Convention.           It mainly complains, under Articles 10 and 14 of the Convention, that its earlier request for a broadcasting licence has not been granted.   In this connection it also relies on the judgment of the Administrative Court of Appeal of 20 May 1976 and on the principle of res judicata.   It further complains that it is prevented, by the Land Authority's failure to fix a period under Article 39 para. 1, from seeking a licence under the new Broadcasting Act.   It considers that the course of events described under I and II of the above statement of facts cannot be justified under Article 10 para. 1, second sentence.           The applicant company also complains, under Article 6 para. 1 of the Convention, of the length of the proceedings concerning the determination of its earlier request for a licence.   It submits that those proceedings concerned a "civil right" within the meaning of Article 6.           It submits that it must be considered as having exhausted all domestic remedies.     PROCEEDINGS BEFORE THE COMMISSION           The applicant company initially asked that examination of the application be adjourned, pending the exhaustion of domestic remedies, but finally agreed that the case should go before the Commission.           On 13 December 1983 the Commission considered the application. It noted that appeal proceedings were pending before the Federal Administrative Court and decided, after having deliberated, to adjourn its further examination.           Under cover of a letter of 23 January 1984 the applicant company submitted a copy of the Federal Administrative Court's decision of 23 December 1983.           By letter of 9 February 1984 the applicant company was invited to state whether a constitutional complaint had been lodged against that decision.           The applicant company replied on 24 February 1984 that a constitutional complaint had not been brought.   It submitted that:   - the time-limit for filing such a complaint had not yet expired;   - the application had been admissible since 1982.   This admissibility   could not be affected by a subsequent domestic decision.   As   already stated in the provisional application of 19 October   1981 (page 2), the applicant company was entitled to bring the   present application after the Federal Constitutional Court's   judgment of 16 June 1981, in view of the binding effect of   that judgment under Article 79 para. 2 sentence 2 of the Act   on the Federal Constitutional Court (Bundesverfassungsgerichts-   gesetz);     - Article 26 of the Convention did not without exception require   prior recourse to the Federal Constitutional Court.   The Federal   Administrative Court, in its decision of 23 December 1983, had   relied on a decision of the joint panel (Gemeinsamer Senat) of   the highest courts of the Federation dated 6 February 1973   (BVerwGE 41, 363).   Exhaustion of all domestic remedies was not   required where the legal position was very much open to doubt.   Moreover, the case had previously been before the Federal   Constitutional Court on two occasions.   An obligation to have   recourse to that Court a third time would amount to refusing   access to the Convention organs.           By letter of 18 April 1984 the applicant company was, with reference to the judgment of the Administrative Court of Appeal of 7 October 1982, invited to clarify its position as to the possibility of a constitutional appeal, concerning the alleged failure of the Saar Diet to legislate in the matter of private broadcasting, and, if it wished, to comment on a press report concerning a draft Bill of the Saar Government providing for private broadcasting.           In submissions of 11 July 1984, enclosing a copy of the Bill, the applicant company stated that the Saarland was proceeding to fulfil its constitutional duty to legislate;   the question whether Article 26 required a constitutional appeal alleging failure to fulfil this legislative duty therefore no longer arose.           On 8 December 1984 the Commission noted that the Saar Broadcasting Act had been adopted on 28 November 1984.   It invited the applicant company to indicate whether it intended to apply for a licence under this Act.           The applicant company replied on 11 March 1985 that it wished to apply and referred in subsequent correspondence (2 May, 25 June, 3 July, 3 September and 7 October 1985) to the development following the March elections and the change of Government in the Saarland, as described under II, 2 of the above statement of facts.           On 17 October 1985 the Commission decided to invite the respondent Government to submit written observations on the applicant company's complaint under Article 10 of the Convention.   Examination of the complaint under Article 6 para. 1 was adjourned.           By letter of 13 December 1985 the Government requested the Commission to obtain certain documents and information from the applicant company.           The Commission, on 24 January 1986, did not find that this material was relevant for the determination of the applicant company's complaint under Article 10, but decided that it would further consider the Government's request in connection with the complaint under Article 6 para. 1 of the Convention.           The Government's observations were received on 11 March 1986.           The applicant company's reply arrived on 14 May 1986.     SUBMISSIONS OF THE PARTIES   A.       The Government           The Government submit that the applicant company's complaint under Article 10 of the Convention is inadmissible under Article 26:   - both for non-exhaustion of domestic remedies and for non-observance   of the six months' rule, in so far as it relates to the proceedings   "concluded with final and binding effect" by the judgment of the   Administrative Court of Appeal of 20 May 1976;   - for non-exhaustion of domestic remedies as regards the subsequent   proceedings.   1.       The Government argue that an entitlement on the part of the applicant company to the licensing of private broadcasting, derived from Article 5 of the Basic Law, was dismissed finally and with binding effect by the Administrative Court of Appeal in its judgment of 20 May 1976.   In respect of that part of the judgment the applicant company could have appealed against the refusal of leave to appeal on points of law.   A constitutional complaint alleging a violation of its alleged right under Article 5 to make private broadcasts was also possible.   But the applicant company made no use of either remedy.   On the contrary, it accepted this judgment, which had turned to its disadvantage, and the order requiring the Saarland Government to determine the application for a licence, although it was foreseeable that the determination would be negative.           The Government do not consider that the res judicata effect of the above judgment, concerning the rejection of the applicant company's claim under Article 5 of the Basic Law to make private broadcasts, was affected by the subsequent proceedings.   They point out that the Administrative Court of Appeal, in its later judgment of 7 October 1982 at page 23, expressly referred to its earlier judgment of 20 May 1976 and that it did not go into a new discussion of the questions already decided with final and binding effect.   The only question that subsequently still had to be examined was the question whether - following the declaration of nullity of the relevant provisions of the Broadcasting Act of 1967 - there might be a claim under constitutional law to renewed action on the part of the Saarland legislature and whether technical developments that had taken place in the interim might, for the first time, found such a claim.           In so far as the applicant company did not have recourse to the available remedies it has failed to comply with the requirement that domestic remedies must be exhausted.   In addition, it also did not apply to the Commission within the six months' time-limit, running from the judgment given with final and binding effect by the Administrative Court of Appeal on 20 May 1976, by virtue of which an entitlement under Article 5 of the Basic Law to make private broadcasts had been rejected under domestic law.   Accordingly, an examination of this question in the present application is excluded under Article 26 of the Convention.     2.       With regard to the domestic proceedings since 20 May 1976 the Government submit in the first place that, when the application was registered, administrative court proceedings were in progress at first instance.   Thus under German domestic law all opportunities for judicial examination were still open to the applicant company, i.e. proceedings before the Administrative Court, that had not yet given its decision, before the Administrative Court of Appeal, the Federal Administrative Court and the Federal Constitutional Court.   On these facts the complaint is inadmissible on the ground that it was lodged before exhaustion of domestic remedies.   An exceptional case in which domestic remedies may be exhausted during Convention proceedings did not exist here.           In its judgment in the Ringeisen case (Eur.   Court H.R., judgment of 16 July 1971, Series A No. 13) the Court held that an applicant is, as a rule, obliged before applying to the Commission to avail himself of the various domestic remedies but that the Commission may accept that the last instance of domestic remedies is reached shortly after the lodging of the application but before a decision has to be given on its admissibility.   In that judgment the Court stated (loc. cit. and Yearbook 14 p. 848 para. 91):           ".... that the last stage of such remedies may be reached         shortly after the lodging of the application but before the         Commission is called upon to pronounce itself on         admissibility."           According to the Government the requirement that domestic remedies must be exhausted serves, on the one hand, the purpose of getting an applicant to have recourse in the first place to domestic remedies that are as a rule quicker, cheaper and more pertinent to the matter before turning to an international organ.   Secondly, it is also intended that the State against which action is being taken should have the opportunity of having possible violations of the law examined by its domestic courts and of remedying them if necessary - before being called to account by an international instance.   This also presupposes that the State concerned is informed of the charge of violating the Convention within a reasonable time and is thereby put in a position to examine this charge and to comply with its obligations under the treaty in good time.   The rule of international law that domestic remedies must be exhausted "is based on both justice and common sense".   It would become meaningless and the legitimate interests of the Contracting States would be violated if it were permissible for applications to be made pending in reserve - so to speak - against possible future violations of the Convention and for the Commission to be seized of a case at the same time as domestic instances.             These considerations rule out the application being regarded as admissible by way of exception.   The margin of flexibility conceded by the Court is limited to a short period of time and has been overstepped in the present case.   The fact that proceedings for a remedy under the Convention - of which the Federal Government has no knowledge and to which it therefore cannot react appropriately - should be running parallel to domestic proceedings, as in the present case, is not considered by the Federal Government to be compatible with the rule of international law concerning exhaustion of domestic remedies.   The Government point out that extensive technical changes have occurred particularly in the field of broadcasting over the last years - changes which, according to decisions of the Federal Constitutional Court, might also have an impact on the determination of claims under Article 5 of the Basic Law to have private broadcasting authorised.   Thus the position concerning entitlement may have changed fundamentally on the domestic level and similarly under the law of the Convention.   The Government do not accept "that an application that was possibly inadmissible at the time it was lodged or registered could be left for such a long time that it might - as a result of the lapse in time - begin to offer prospects of success in view of changes in the factual or legal circumstances."   3.       The Government further submit with regard to the domestic proceedings since 20 May 1976 that the applicant company not only had not exhausted domestic remedies before the introduction of the application but also failed to do so thereafter.   According to the case-law of the Convention organs an applicant is required to exhaust all possible remedies available to him.   Doubts concerning the effectiveness of a remedy do not entitle him to refrain from seeking a remedy.   The examination of the question whether a remedy might succeed is the task of the domestic courts.   This question must be resolved before there is recourse to an international forum. (No. 712/60, Retimag v.   Federal Republic of Germany, Dec. 16.12.61, Collection 8 pp. 29, 38 = Yearbook 4 pp. 384, 400 with further references;   Eur.   Court H.R., Van Oosterwijck judgment of 6 November 1980, Series A No. 40, paras. 26 et seq.).           In the present case the applicant company did not duly avail itself of two possible domestic remedies in respect of the second proceedings for the granting of a licence to make private broadcasts: appeal against the refusal of leave to appeal on points of law, in the judgment of the Administrative Court of Appeal of 7 October 1982, and constitutional complaint.           It is true that, after the judgment of the Admnistrative Court of Appeal of 7 October 1982, the applicant company appealed against the refusal of leave to appeal on points of law.   This appeal, however, did not deal with questions relating to basic and human rights but only with the allegedly binding effect of the first judgment of the Administrative Court of Appeal of 20 May 1976.   By this restriction the applicant company denied the Federal Administrative Court the opportunity of examining the fundamental question it had already raised before the Commission - i.e. the question of an entitlement under Article 10 of the Convention to a licence for private radio broadcasting - and also the analogous question under Article 5 of the Basic Law.   As to the requirement that an appeal must be lodged against refusal of leave to appeal on points of law, before there is recourse to the Federal Constitutional Court under Article 90 para. 2 sentence 1 of the Act on the Federal Constitutional Court, the Government refer to BVerfGE 16, 1 (2 et seq.) and BVerfGE 52, 369 (387).           In the Government's view the applicant company could have tried to obtain leave to appeal on points of law in view of the fundamental importance of the matter - particularly in the light of the references made in the administrative court judgments during the second proceedings to possible further developments in the technical field and their effects on a possible entitlement under Article 5 and also in the light of the fundamental issue of the courts' functioning as a substitute legislator, which issue had been discussed at previous instances.           The applicant company, in order to exhaust domemstic remedies, should have referred the Federal Administrative Court to this fundamental issue.   Whether it would have succeeded with such submissions on the fundamental importance of the case does not have to be decided by the Commission here.   If the applicant company had made entitlement to a licence for private radio broadcasters the subject- matter of proceedings before the Federal Administrative Court, the latter - as the competent national instance - could have, and would have had to, examine the prospects of success.   The Federal Administrative Court would then, in the light of given and also foreseeable technical change, have had to go into the issue raised, taking into account expositions in the relevant literature.   This applies both in respect of a direct entitlement to a licence for private broadcasting and in respect of a claim to legislative action.           The Government further point out that, after judgment was given by the Administrative Court of Appeal on 7 October 1982, the applicant company did not lodge a constitutional complaint.   In failing to lodge such a complaint it denied the Federal Constitutional Court the opportunity of examining the measure - to which it had raised objection - with reference to an entitlement under Article 5 of the Basic Law to a licence for private radio broadcasting.   In its judgment of 16 June 1981 the Federal Constitutional Court had expressly left this question open (BVerfGE 57, 295/318).   The Federal Constitutional Court was confronted with numerous submissions on this very question during the second proceedings to examine norm validity. These submissions indicated a fundamental need for examination in view of technical changes taking place.   Nevertheless, the Federal Constitutional Court did not have to express an opinion on this question because it was not at issue in the given proceedings for examination of norm validity.   On the other hand, after the decision of 16 June 1981 it was at the same time clear that constitutional examination of the applicant company's cause could become necessary in future.   At any rate both the Administrative Court and the Administrative Court of Appeal reflected on this.           After they had come to a conclusion adverse to the applicant company, the latter should have referred the question of an entitlement under Article 5 of the Basic Law to a licence for private radio broadcasting, or to relevant legislative action, to the Federal Constitutional Court, so as to exhaust all domestic remedies in accordance with Article 26 of the Convention.   In the Government's view this applies all the more as the applicant company was referred by both the Administrative Court (page 33 of the judgment of 13 November 1981) and the Administrative Court of Appeal (page 26 of the judgment of 7 October 1982) to the possibility of a constitutional complaint as a remedy available in this case for the attainment of what is desired.   Accordingly, and in the light of the statements made by the Federal Constitutional Court in its judgment of 16 June 1981, it is surprising that the applicant company should not have had recourse to the Federal Constitutional Court.           One possible explanation for this, however, is that it may have failed to observe the time-limit for lodging a constitutional complaint pursuant to Article 93 para. 1 sentence 1 of the Act on the Federal Constitutional Court.   The order of events speaks in favour of this assumption.   The decision of the Federal Administrative Court of 23 December 1983 was sent to the applicant company on 13 January 1984 and would probably have come to its attention by 17 January at the latest.   The time-limit stipulated by Section 93 then expired on 17 February 1984 at the latest.   Only after the time-limit had expired did the applicant company contact the Commission.   The statement, in the letter of 24 February 1984 to the Commission, that the time allowed for lodging a constitutional complaint had, at that stage, not yet expired, is incorrect.   According to para. 1 sentence 2 of Section 93 the period of time allowed begins to run when service is effected or when there is informal notification of the full decision in those cases where the relevant procedural provisions require this to be done ex officio.   Accordingly, in the present case, the period of time allowed began to run at the moment when the Federal Administrative Court's decision of 23 December 1983 was informally communicated to the applicant company.   4.       The Government contest the applicant company's view that, after there had been recourse on two previous occasions to the Federal Constitutional Court by the Administrative Courts in proceedings under Article 100 of the Basic Law, renewed recourse to the Federal Constitutional Court would have served no purpose.   In the Government's view this submission fails to take account of the scope of the Federal Constitutional Court's judgment of 16 June 1981 and of the applicant company's function and status in such proceedings.           That the Federal Constitutional Court's decision of 24 March 1976 did not include an opinion on the possibility of the applicant company's entitlement under Article 5 of the Basic Law to be authorised to make private broadcasts is so obvious that no further substantiation is needed here.   But also in the proceedings leading up to the decision of 16 June 1981 there was no reason - as already explained - for discourse on this question.   Indeed the question of a possible entitlement under Article 5 to make private broadcasts was expressly left open and thus held in reserve for future proceedings.     The Federal Constitutional Court had to proceed on the basis of the decision taken by the Saarland legislature to render private broadcasting possible.   The Court only   had to examine whether the actual arrangements selected for the Act were in harmony with the principles of "broadcasting freedom".           Thus it was a question of freedom of broadcasting as an objective principle to be understood in the light of the other basic rights guaranteed in Article 5 para. 1, in particular in the light of freedom of information on the one hand and of expression of opinion on the other.   The Federal Constitutional Court infers the need for statutory configuration of broadcasting freedom from this context. The requirements, inferable from the guarantee of broadcasting freedom, in respect of statutory regulation were not considered by the Court to have been fulfilled.   These questions must be distinguished, however, from the question brought by the applicant company before the Commission as to whether it may, for example, operate radio broadcasting installations as an owner.   It is not, moreover, apparent that the applicant company, in the event of obtaining a licence, would not be willing to carry out its broadcasting in a manner corresponding to the requirements inferred from broadcasting freedom by the Federal Constitutional Court in its judgment of 16 June 1981.           Hence it must be recorded that in the prior proceedings for examination of norm validity the Federal Constitutional Court had not yet had to deal with the question laid before the Commission by the applicant company.   Thus the company could reasonably be expected to submit this question for the first time to the Federal Constitutional Court for decision by filing a constitutional complaint.           The function of proceedings brought under Article 100 of the Basic Law and the applicant company's status in these proceedings also exclude the possibility of regarding a subsequent constitutional complaint as being dispensable.   Proceedings under Article 100 in a concrete case only serve the purpose of clarifying the law to be applied by the Court.   The Federal Constitutional Court characterised such proceedings as follows (BVerfGE 42, 90/91):   "In proceedings to examine the validity of norms in a concrete case, brought before the Federal Constitutional Court under Article 100 para. 1 of the Basic Law and Article 13 No. 11 of the Act on the Federal Constitutional Court, the parties to the original case are not accorded the status of a party to the proceedings before the Federal Constitutional Court.   Parties to the original case cannot institute these proceedings, nor do they have the power - which is fundamentally characteristic of the status of a party to the proceedings - to apply for decisions. Proceedings to examine the validity of norms in a concrete case serve the constitutional court's guarantee that objective law shall be observed;   such proceedings are not an instrument for the individual to obtain a legal remedy.   The status of party to the proceedings and, in particular, the power of making applications during proceedings cannot be inferred from the avenues of action conceded by Article 82 para. 3 of the Act to parties to the original case during proceedings before the Federal Constitutional Court for an examination of norm validity in a concrete case.   Hence parties to the original case are as such generally debarred from introducing motions of challenge under Section 19 of the Act."             If proceedings for an examination of norm validity in a concrete case only serve the purpose of clarifying the norm to be applied, then in the applicant company's case they cannot have had the effect of clarifying actual claims.   Rather, such clarification only took place during the Administrative Court proceedings where referral to the Federal Constitutional Court was decided on.   In proceedings for an examination of norm validity in a concrete case the Federal Constitutional Court does not give a decision on actual facts but only incidentally to such facts.   With its decision the Federal Constitutional Court helps to clarify the ordinary law that has to be applied.   In the case of post-constitutional statutes this means that their nullity will be declared if they are held to be in violation of the Basic Law.   All this, however, means that it is not possible to regard a subsequent constitutional complaint as being dispensable with reference to exhaustion of all domestic remedies if previously the Federal Constitutional Court has merely determined the ordinary Land law that has to be applied.           The Government also contest the view that the applicant company was entitled to have recourse to the Commission, before having exhausted all domestic remedies, because of the binding effect provided for in Article 79 para. 2 sentence 2 of the Act on the Federal Constitutional Court.   They submit that this provision, which according to Article 82 para. 1 of the Act applies mutatis mutandis to proceedings for examination of norm validity in a concrete case, embraces rules concerning the effects of decisions of the Federal Constitutional Court.   Article 79 para. 2 sentence 1 lays down the principle that decisions that are no longer open to challenge and that are based on a norm that has been declared null and void shall fundamentally remain unaffected.   According to sentence 2 of this provision there shall, however, no longer be any execution resulting from such a decision no longer open to challenge.           What execution is meant here by the applicant company is not apparent.   The judgment of the Administrative Court of Appeal of 20 May 1976 was carried out by the authority ordered to determine the application for a licence, in that the provisions of the Broadcasting Act, which were subsequently declared null and void, were applied. Any further execution based on this or on another unenforced decision was not apparent.           That the Federal Constitutional Court's judgment of 16 June 1981 did not prejudge the question of possible entitlement, in the nature of a basic right, to make private broadcasts already follows from the fact that this question was expressly left open. Accordingly, the Administrative Courts concerned also conducted an independent examination of the position under constitutional law.   A "binding effect" followed - at the most - from the judgment of 16 June 1981 in so far as claims to authorisation of private radio broadcasting could no longer be derived from the ordinary Land law provisions of the Broadcasting Act that had been declared null and void.   Claims inferred from Article 5 of the Basic Law or Article 10 of the Convention were not affected by this.             The Government repeat that doubts as to the prospects of a remedy's success do not absolve from the obligation to exhaust this remedy.   Particularly where the legal position is in doubt there should in the first place be recourse to the national courts for clarification.   It would not be compatible with international law principles relating to the exhaustion of domestic remedies if every time the legal position was in doubt recourse to the courts could not reasonably be expected.           The Government note the applicant company's reference to a ruling of the Joint Panel of the Highest Courts of the Federation, given on 6 February 1973.   This ruling concerned the binding effect of judgments and the principle of res judicata (cf. page 6 of the Federal Administrative Court's decision of 23 December 1983).   It is not apparent to the Government to what extent doubts concerning such matters of ordinary law may be a reason for dispensing with domestic remedies where human rights violations are at issue before the international instance concerned.   Even if one accepts the view that doubts as to the legal position make it possible to dispense with exhaustion of domestic remedies, logically such doubts will have to relate to those legal questions laid before the international instance for decision.   However, the questions of res judicata discussed extensively in the prior domestic proceedings in this case were not questions that form the subject-matter of the present human rights application.           The Government also refer to the Commission's letter of 18 April 1984 to the applicant company inviting it to state whether it had filed a constitutional complaint, alleging that Land legislature had failed to fulfil its constitutional mandate of statutory regulation of private radio broadcasting.   The applicant company replied to the effect that, because the Land legislature was working on a relevant bill,