CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 octobre 1988

.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. 12602/86                       by Styrelsen for Jyllands-Postens Fond                       against Denmark             The European Commission of Human Rights sitting in private on 9 December 1988, the following members being present:                 MM. S. TRECHSEL, Acting President                   C. A. NØRGAARD                   E. BUSUTTIL                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G. H. THUNE              MM.   F. MARTINEZ                   C. L. ROZAKIS              Mrs.   J. LIDDY                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;           Having regard to the application introduced on 7 October 1986 by Styrelsen for Jyllands-Postens Fond against Denmark and registered on 20 November 1986 under file No. 12602/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows:           The applicant is Styrelsen for Jyllands-Postens Fond (the Board of Trustees of the Jyllands-Posten Trust).   It is domiciled at Viby, Denmark.   Before the Commission the applicant is represented by the chairman of the trust, Mr.   Gunnar Henriksen.           Jyllands-Posten, a daily newspaper, was founded in 1871 as a privately owned firm and was later converted into a limited liability company (Jyllands-Posten A/S).   About 1970, a group with a 50 % shareholding went bankrupt, and at the instigation of the newspaper's responsible editor and its managing director at that time, it was decided to let the ownership of the newspaper pass to a trust (Jyllands-Postens Fond).   The trust was established in 1971.   All the shareholders then agreed to sell their shares to the trust, which thus became the owner of the entire share capital.   Jyllands-Posten is now a proprietary (selvejende) institution.           In the years following the establishment of the Jyllands- Posten Trust, its statutes were subjected to minor editorial alterations, but its object remained the same.   This also applied to the provision concerning the fact that the trust is subject to co-optation (selvstyrende).   In 1984 the statutes read as follows:           The object of the trust is to "support the publishing of Morgenavisen Jyllands-Posten as a liberal newspaper, independent of private, commercial, organisational and affiliated political interests by holding shares in Jyllands-Posten A/S. This support to Jyllands-Posten A/S shall consist in part of the trust trying to create the best qualified board of directors for the company through its influence on the election of members to the board of directors of Jyllands-Posten A/S, in order to secure to the company skilled, responsible, business-like, technical and editorial managers, who are independent of other interests, in part of the trust, through its shareholding and capital, exercising a stabilising influence on the company's capital matters and financial continuity for the promotion of a healthy and active development of the company" (Article 1 para. 1).           In view of the commitments under paragraph 1 the object is further to "grant support for dealing with social, cultural or other social issues in relation to maintaining a liberal democratic society in Denmark.   Such support from the trust shall principally be granted in areas where the public authorities have no possibility to grant support to the extent necessary" (Article 1 para. 2).           Under Article 7 of the 1984 statutes, the trust is managed by a board of trustees composed of 10 members.   One member is appointed by Kjøbenhavns Handelsbank and Den danske Provinsbank.   This member must be independent of Jyllands-Posten A/S and its management as well as of the two banks.   The remaining 9 members are elected by the board of trustees itself.   Until 1984 there was no Danish legislation dealing specifically with trusts and in the period from 1871 to 1984 the statutes of the trust did not violate any statutory provisions.           While the trust did not come under special legislation upon its establishment and for many years thereafter, the legal position was different for Jyllands-Posten A/S. This company has constantly been subject to the company law provisions and has complied with their requirements regarding capital, management, annual accounts, etc.   The composition of board and management and their duties are governed by the provisions of the Companies Act (aktieselskabsloven).           The relations between the trust and the company can be briefly summarised as follows: Jyllands-Posten A/S is a business enterprise whose objective is to publish Morgenavisen Jyllands-Posten as an independent, liberal daily newspaper and to deal with related activities, including printing, publishing, television and other communications activities.   The company's share capital amounts to 17 million Danish crowns and the trust owns all shares.   The shares are registered in the name of the trust, and they cannot be sold or in any other way disposed of.   In the event of any increase of capital, the trust shall subscribe for the new capital.   At the general meetings, the members of the trust's board of trustees exercise all powers conferred upon shareholders in a limited liability company, and they are also subject to the same commitments as shareholders.           The board of directors of Jyllands-Posten A/S is composed of 9 members, 6 of whom are elected by the company from among or outside the group of shareholders.   Three members of the board of directors are elected by the company's employees for a term of four years at a time, pursuant to Section 49 of the Companies Act.           Over the years a number of major business enterprises were converted into trusts, one of the reasons being the special taxation rules applying to trusts.   This conversion was made either by the business enterprise in question being transferred to a trust or - where the business enterprise was operated in the form of a limited liability company - by transferring a controlling shareholding to a trust.   Prior to 1985 Danish law did not, as mentioned above, contain general provisions concerning foundations, charitable trusts or other proprietary institutions.   Common law was the legal basis for these institutions.   Irrespective of size and objectives, it was possible to freely establish trusts, and they were not required to seek approval of their statutes by a public authority, thus subjecting them to public supervision.           As a result of this business trusts obtained major economic importance and moved into business sectors where limited liability companies previously dominated.           This development paved the way for the opinion that business trusts should be subject to the same provisions as limited liability companies carrying on business, and eventually for the Act on Business Trusts (loven om erhvervsdrivende fonde).   The Act is widely identical to the Companies Act.   Thus, the Act regulates registration, the size of capital, the trust management, the annual accounts and auditing as well as the competence of the authority supervising trusts.           The Act on Business Trusts was published in the official Law Gazette (lovtidende) on 6 June 1984 as Act No. 286.   According to Section 65 of the Act it entered into force on 1 January 1985.   Under Section 1 of the Act, a trust is considered to be a business trust if it carries on business activities by itself, or if the trust owns such a large shareholding in a company that the trust represents the majority of the votes in the company or otherwise has a "controlling influence" on the company.   With respect to the management of a trust, Section 22 of the Act specifies:           "The provisions in the Companies Act and regulations         introduced in pursuance thereof regarding the election of         board members by employees shall apply, mutatis mutandis,         to a trust carrying on business and its subsidiaries.   The         board members elected by employees take part exclusively         in matters which do not concern the business activities         where the statutes or charter so determine."           The reference to the provisions in the Companies Act on the election of board members by employees means in brief: If the management of a trust (the board of trustees) has so far elected 6, 8 or 10 members, employees are now entitled to elect 3, 4 or 5 members, respectively.   These members, thus constituting half the number of members appointed, are elected by the employees' own organisations. Boards of trustees, which have so far had 6, 8 or 10 members pursuant to their own statutes, will now have 9, 12 or 15 members, respectively, following election by the employees as provided for in the new Act.           According to Section 1 sub-section 5 of the Act the competent authority may decide, with the consent of the Minister of Industry, that a trust, which in other ways than through the Act is subject to public scrutiny and economic control, may be exempted from complying with the provisions of the Act.           Prior to the enactment, the applicant trust applied for exemption from the Act or from the requirement that the trust must comply with the provisions of the Act.   This was done in letters of 9 July 1984 to the Minister of Industry and the Minister of Justice.   The applications were based on the following grounds: that the Jyllands-Posten Trust was not a business trust in the ordinary sense of the word, but rather a guarantor that the shares of Jyllands-Posten A/S were not taken over by any third party, and that the trust could only guarantee the independence of the daily newspaper Jyllands-Posten from organisation interests, if the organisations were without any influence on the election of members to the board of trustees.   It was pointed out that the objective of the trust was not to exercise a controlling influence on the commercial enterprise, Jyllands-Posten A/S, and that it did not interfere with editorial matters, either in its capacity as owner or as publisher.           On 16 November 1984, the Minister of Justice - on behalf of the Minister of Industry as well - refused to grant the request from the board of trustees for full or partial exemption of the Jyllands- Posten Trust from the Act on Business Trusts.           The chairman of the trust and the chairman of the board of directors of Jyllands-Posten A/S then tried to arrange negotiations with the Prime Minister.   A meeting took place in April 1985.   The outcome was that if Jyllands-Posten wished to proceed with the matter - either of its own accord or together with the Danish Newspaper Publishers' Association (Danske Dagblades Forening (DDF)) - there was no need to submit a new application for exemption from the Act.   Instead, it was necessary to apply for an amendment of the Act to the effect that the provisions of the Act should not extend to newspaper trusts, etc.           Such an application for amendment of the Act was submitted to the Prime Minister in a letter from the Jyllands-Posten Trust of 4 July 1985.   The trust did not receive an official reply to this letter. On 3 December 1985 DDF also applied for such an amendment of the Act. It was stated that a newspaper trust cannot be considered a business entity in the ordinary sense of the word but must be the guarantor for the financial and editorial independence of the newspaper in question, and thereby ensure that the fundamental concept underlying the newspaper and its editorial profile are not being threatened by external forces.           In May 1986, the chairman of the board of trustees received a memorandum from the Ministry of Industry dated 3 January 1986.   The memorandum made reference to the second part of Section 22 of the Act which, as mentioned above, provides that employee representatives take part only in dealing with matters which do not relate to the business activities, provided that this is so determined in the statutes.           By letter of 5 May 1986 to the Minister of Industry, the board of trustees expressed its hesitations about this.   The crucial area for the competence of newspaper trusts was the fundamental concept underlying the newspaper and its profile.   According to the wording of the Act and the memorandum of 3 January 1986, that area could not be excluded from the competence of employee representatives, since the fundamental concept underlying the newspaper did precisely and above all relate to its business activities.   For this reason, it would be impossible to safeguard the independence of the newspaper from organisation interests, in particular, if newspaper trusts were to be compared with business trusts in general.   Against this background, the board of trustees requested new negotiations about the position of newspaper trusts.           On 20 June 1986, the Minister of Industry informed the trust that he did not find any reason for renewing the discussions concerning the position of newspaper trusts.   A further exchange of views ensued, but on 21 July 1986 the Minister eventually declared that he considered the case closed.   The applicant did not pursue any other remedies in Denmark.   COMPLAINTS           The Act on Business Trusts of 6 June 1984 entered into force on 1 January 1985.   Prior to the date of coming into operation, the board of trustees applied for an exemption from the provisions which would interfere with the trust's independence, and thus its ability to comply with the objects clause in its statutes.   After having received a rejection of this petition on 16 November 1984, the Government - in this case represented mainly by the Minister of Industry - were requested to take part in negotiations with a view to including a provision in the Act exempting newspaper trusts from the Act on Business Trusts.   After an extensive exchange of letters, the Minister of Industry pointed out in a letter dated 21 July 1986 that he considered the case closed.   This must, in the applicant's view, be considered the final decision, so that the time-limit referred to in Article 26 of the Convention must start running from 21 July 1986.           As the question of obtaining exemption from the Act or the inclusion of a statutory exemption with respect to newspaper trusts depends on administrative or political considerations, there is no prospect of the courts making a decision based on the facts of the case.   During a legal action, the board of trustees could claim that the Act or elements in it violate Section 77 of the Danish Constitution to the extent that the provisions in question are to apply to newspaper trusts, but the Danish Supreme Court has never before abrogated statutes as being in violation of the Danish Constitution.   Bringing an action before a court is thus not a remedy permitting efficient and sufficient redress of the alleged injustice. Consequently, the condition set forth in Article 26 of the Convention to the effect that all domestic remedies must have been exhausted according to the generally recognised rules of international law, has been fulfilled.           The main objective of the Jyllands-Posten trust is "to support the publishing of the newspaper Morgenavisen Jyllands-Posten as a liberal newspaper, independent of private, organisation and affiliated political interests by holding shares in Jyllands-Posten A/S".   A number of the other provisions in the statutes serve to safeguard the independence of the trust.   The most important of these is to the effect that nine out of ten members of the board of trustees are appointed by co-optation (selvsupplering), which provides efficient guarantees against external influence.   The Act on Business Trusts weakens this guarantee, in particular through a provision to the effect that one third of the members of the board of trustees are to be elected by bodies other than the board.   Pursuant to the Act, such members are to be elected by the employees of the company according to electoral rules, which will secure seats on the board of trustees for the largest staff groups.   Due to the close ties of such groups with labour market organisations, the board of trustees can no longer comply with the objects clause to support the company in publishing Morgenavisen Jyllands-Posten as a liberal newspaper, independent of organisation interests, among others.           In this connection, it should be pointed out that the board of trustees is not a board in the sense defined in company law.   The trust owns Jyllands-Posten A/S, and the members of the board of trustees have a status as owners of the company.   They exercise their most important functions at the general meeting just as shareholders do in a limited liability company which is not owned by a trust.   Thus, the said Act interferes with the ownership of Jyllands-Posten A/S and restricts the competence of the current owners.           Such interference on the part of the Government in newspaper ownership constitutes a clear violation of Article 10 para. 1 of the Convention.   Article 10 para. 1 of the Convention must be taken to mean that any citizen or group of citizens can start publishing a newspaper without having to submit to orders from the Government to the effect that public authorities, labour market organisations or others must be represented among the "owners" to a greater or smaller extent.   In the present case, non-compliance with the Convention seems particularly flagrant, because the Act interferes retroactively with existing ownership.   The first statutes of the Jyllands-Posten Trust were signed on 30 June 1971.   The Act on Business Trusts violates the objects clause and the provisions on ownership of the trust and the composition of the board of trustees by co-optation.   If it had not been for the special consideration in the present case given to the freedom of expression as protected under Article 10 of the Convention, the application might have been lodged under Article 1 of Protocol No. 1 to the Convention, under which every natural person or legal person is entitled to the peaceful enjoyment of his possessions.           The crucial point in this case is that the board of trustees has been denied exemption from the Act on Business Trusts.   The Act calls for a specific composition of the management of a trust holding all shares or even a substantial portion of the shares in a limited liability company, which carries on business activities.   If these provisions are also to extend to the Jyllands-Posten Trust, this is tantamount to the legislative power having interfered with the ownership of the periodical press.   This constitutes a violation of the guarantees of freedom of expression generally found in the constitutions of democratic countries, and moreover a violation of Article 10 para. 1 of the Convention.           It is important that business enterprises, whose main objective is the publishing of informative, opinion-making and entertaining publications, are managed according to healthy financial and business-like principles.   They hold, however, a special position in that their main objective can only be fulfilled where there is extensive editorial independence from private, commercial, organisation, and public interests.   Nothing can prevent e.g. a periodical from being published for the purpose of safeguarding the interests of a trade union, a political party, the farming sector or industry.   In that case as well as in others, editorial independence will consist in guarantees for the editors' freedom of action in keeping with previously determined, general guidelines, ensuring that third parties cannot interfere by some sort of pressure or threats with the competence of the editors to decide what to print and publish.   The necessity for editorial independence in this sense has long been recognised and accepted in the area of printed matter, be it the publishing of non-periodical matters or the publishing of periodicals (daily papers, magazines, etc.).           As regards both publishing and the function of the periodical press, editorial independence is based on the same ideals and wishes as are the actual background to the freedom of expression laid down in the Danish Constitution.   It follows from Section 77 of the Danish Constitution that "everyone shall be entitled to make public his views in print, in writing and in speech, provided that he may be held responsible in a court of justice.   Censorship and other preventive measures shall never again be introduced".   These words only acquire meaning if all kinds of publishing enjoy extensive freedom in a political, religious, organisational and economic respect.           It is probably due to a "technical mishap" that newspaper trusts have come under the Act on Business Trusts.   A newspaper trust is not established with a view to obtaining a controlling influence on a newspaper operating as a limited liability company.   Its objective is to prevent others from gaining a controlling influence on the publishing activities.           When a newspaper trust becomes subject to the Act on Business Trusts, the consequence is that in certain respects the authority supervising trusts takes over some of the powers of the general meeting.   It must be considered unfortunate that public authorities have such powers in relation to newspaper trusts.   The powers are closely tied to the overall aim of the Act, viz. to lay down provisions for trusts which have a controlling influence on companies carrying on business, similar to those applying to limited liability companies.   However, a newspaper trust does not carry on business activities by itself, and as a result of the Press Act (presseloven) and considerations of editorial independence, it has limited influence on the business activities.   Thus, newspaper trusts are atypical compared with trusts otherwise covered by the Act on Business Trusts.   They should therefore be protected against becoming dependent on public authorities and should not become subject to provisions obliging them to exercise stronger influence on the business activities.           In particular Section 22 of the Act on Business Trusts may have regrettable consequences for a newspaper trust.   Under this section the provisions of the Companies Act and regulations introduced under it regarding the election of board members by employees apply mutatis mutandis to a business trust.           Section 22 of the Act on Business Trusts demands that one third of the owners of a publishing enterprise are to be elected by employees (in fact by their organisations) outside the group of owners.   This violates both the constitutional guarantees in democratic countries and Article 10 of the Convention.           The board of trustees of the Jyllands-Posten Trust finds that employees in the publishing enterprise should be represented on the board of trustees.   However, it finds it vitally important that the employee representatives also be elected to the board of trustees by co-optation.   At the election, the board of trustees can fulfil the objects clause of the trust and appoint employee representatives, who meet the qualifying conditions set forth in the statutes. Section 22 of the Act on Business Trusts is, however, based on the wish that the organisation to which a majority of the employees are attached must be represented on the board of trustees.   But if the representatives of the employees on the board of a newspaper trust are to be elected on the basis of organisation considerations, the board of trustees cannot meet its commitment to guarantee the newspaper's independence from organisation and other similar interests.           For newspaper enterprises, which have been converted into trusts, it is extremely important to be able to ensure stability and continuity of development, so that the independent status of the newspaper cannot be jeopardised by forces wishing to change the political and editorial profile of the newspaper.   The application of Section 22 of the Act on Business Trusts can bring the employee representatives on the board of trustees into unpleasant conflict situations, when there is a conflict between organisation interests and the consideration for the newspaper's independence and profile.           In this connection reference should be made to German legislation, where the 1972 Act on Work Councils exempts opinion- making enterprises, i.e. newspapers, book publishers and other similar enterprises.   The German 1976 Act on Co-determination also exempts the press.   There is no actual Common Market legislation in the area, but the 5th Company Directive on Employee Representation on the Boards of Directors etc. of Commercial and Industrial Enterprises does not include newspaper publishing for precisely the same reasons as stated above.     THE LAW           The applicant trust has complained that the provisions of the Act on Business Trusts interfere with its right to freedom of expression as secured by Article 10 (Art. 10) of the Convention which reads as follows:     "1.    Everyone has the right to freedom of expression.   This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...   2.   The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."           The Commission recalls that it is only required to decide whether or not the facts submitted by an applicant disclose any appearance of a violation of this provision if the requirements under Article 26 (Art. 26) of the Convention, to exhaust domestic remedies according to the generally recognised rules of international law and to lodge the application with the Commission within a period of six months from the date of the final decision, have been complied with.           In this respect the applicant trust has submitted that the time-limit referred to in Article 26 (Art. 26) of the Convention must start running from 21 July 1986 when the Minister of Industry pointed out that he considered the case closed.   Furthermore it maintains that bringing an action before the Danish courts would not be a remedy permitting efficient and sufficient redress of the alleged injustice.           The Commission does not consider it necessary for the purposes of the present case to examine whether the applicant trust's allegations in this respect are correct and whether, therefore, it has fulfilled the requirements set forth in Article 26 (Art. 26) of the Convention. Even assuming that this is the case, the Commission is of the opinion that the present application is manifestly ill-founded for the following reasons.           It is clear from the Commission's case-law that it is competent to examine the compatibility of domestic legislation with the Convention only with respect to its application in a concrete case, while the Commission is not competent to examine in abstracto its compatibility with the Convention (cf. for example No. 11045/84, Dec. 8.3.85, D.R. 42 p. 247).   Accordingly the Commission will only examine the applicant trust's complaint insofar as the legislation in question affects the trust itself.           In this respect the applicant trust alleges an unjustified interference with its right to freedom of expression as secured by Article 10 (Art. 10) of the Convention, in particular since the Act on Business Trusts provides for employee representatives to be elected to the board of trustees.   In such circumstances the applicant trust is of the opinion that its independence is lost and that it can no longer guarantee, in accordance with its statutes, the independence of the newspaper Jyllands-Posten from outside interests.           The Commission has first considered whether the introduction of the Act on Business Trusts interfered with the applicant trust's rights under Article 10 (Art. 10) of the Convention, and recalls in this respect that the interference allegedly lies in the fact that the new legislation provides for the election of board members by the employees.   It does not, however, appear from the applicant trust's submissions that the object of the trust, to "support the publishing of Jyllands-Posten as a liberal newspaper, independent of private, commercial, organisational and affiliated political interests by holding shares in Jyllands-Posten A/S", has undergone any changes or that the new members do not have to comply with the trust's statutes. Furthermore, the Commission has not found any information which could lead it to conclude, even prima facie, that the applicant trust has been restricted in expressing or supporting any particular view.   In particular the Commission has not found any evidence which could uphold the applicant trust's allegation that "due to the clear ties of such (staff) groups with labour market organisations, the board of trustees can no longer comply with the objects clause to support the company in publishing Morgenavisen Jyllands-Posten as a liberal newspaper".           Under Article 10 (Art. 10) of the Convention it is not the Commission's task to consider whether or not the applicant trust is to be considered a business trust under the relevant domestic legislation and the Commission does not consider the composition of a trust as such to interfere with Article 10 (Art. 10) of the Convention.   The alleged victim remains the trust and not the individual members of the board of trustees.   As pointed out above, however, the Commission has not found evidence which could lead to the conclusion that the applicant trust's rights and freedoms under Article 10 (Art. 10) of the Convention have been interfered with.           In such circumstances it follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission            Acting President of the Commission               (H. C. KRUGER)                              (S. TRECHSEL)