CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 janvier 1992

.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   Application No. 13914/88 by INFORMATIONSVEREIN LENTIA   Application No. 15041/89 by Jörg HAIDER   Application No. 15717/89 by Arbeitsgemeinschaft Offenes Radio (AGORA)   Application No. 15779/89 by Wilhelm WEBER   Application No. 17207/90 by RADIO MELODY Ges.m.b.H.   against Austria   The European Commission of Human Rights sitting in private on 15 January 1992, the following members being present:                MM.   C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   J. C. SOYER                   H. DANELIUS              Mrs. G. H. THUNE              Sir   Basil HALL              Mr.   C. L. ROZAKIS              Mrs. J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   M. P. PELLONPÄÄ                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 16 April 1987 by Informationsverein Lentia against Austria and registered on 3 June 1988 under file No. 13914/88;     Having regard to the application introduced on 15 May 1989 by Jörg Haider against Austria and registered on 23 May 1989 under file No. 15041/89;   Having regard to the application introduced on 27 September 1989 by Arbeitsgemeinschaft Offenes Radio (AGORA) against Austria and registered on 30 October 1989 under file No. 15717/89;   Having regard to the application introduced on 18 September 1989 by Wilhelm Weber against Austria and registered on 20 November 1989 under file No. 15779/89;   Having regard to the application introduced on 20 August 1990 by Radio Melody Ges.m.b.H. against Austria and registered on 26 September 1990 under file No. 17207/90;   Having regard to:   -the Commission's decision of 13 July 1990 to join Applications Nos. 15041/89, 15717/89 and 15779/89 and to give notice of these applications and of Application No. 13914/88 to the respondent Government inviting them to submit observations in writing on their admissibility and merits;   -the Government's observations of 14 November 1990 on Application No. 13914/88 and of 15 November 1990 on Applications Nos. 15041/89, 15717/89 and 15779/89;   -the applicants' observations in reply of 29 January 1991 (Application No. 15717/89), 27 February 1991 (Applications Nos. 15041/89 and 15779/89) and 15 May 1991 (Application No. 13914/88);   -the Commission's decision of 12 July 1991 to give notice of Application No. 17207/90 to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of this application;   -the Commission's decision of 3 September 1991 to invite the parties in Applications Nos. 13914/88, 15041/89, 15717/89 and 15779/89 to an oral hearing on the admissibility and merits;   -the Governments's observations on Application No. 17207/90 of 2 October 1991 and the applicant's observations in reply of 8 November 1991;   -the Commission's decision of 6 December 1991 to include Application No. 17207/90 in the hearing already decided in the other cases;   -the Commission's decision of 14 January 1992 to join all five cases;   -the parties' submissions at the oral hearing on 15 January 1992;   Having deliberated;   Decides as follows:   THE FACTS   The facts agreed between the parties may be summarised as follows:   The first applicant, Informationsverein Lentia, is a private association established in Linz, Upper Austria.   It is represented by Mr. Bruno Binder, a lawyer practising in Linz who has been instructed by the association's president, Mr. Alois Höfler.   The second applicant, Mr. Jörg Haider, is an Austrian citizen residing in Klagenfurt, Carinthia.   He is the Chairman of the Austrian Liberal Party (FPÖ) and Deputy Governor (Landeshauptmann- Stellvertreter) of the province of Carinthia.   He is represented by Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers practising in Vienna.   The third applicant, Arbeitsgemeinschaft Offenes Radio (AGORA), is a private association established at Eisenkappel, Carinthia.   It is represented by Mr. Thomas Höhne, a lawyer practising in Vienna who has been instructed by the association's president, Mrs. Brigitte Busch.   The fourth applicant, Mr. Wilhelm Weber, is an Austrian citizen born in 1941 who resides at St. Andrä in Lavanttal, Carinthia.   He is represented by Messrs. Dieter Böhmdorfer and Wolfram Themmer, lawyers practising in Vienna.   The fifth applicant, Radio Melody Ges.m.b.H., is a limited liability company established and registered in Salzburg.   It is represented by Mr. Wilfried Haslauer, a lawyer practising in Salzburg.   A.THE PARTICULAR CIRCUMSTANCES OF THE CASES   a)Application No. 13914/88 (Informationsverein Lentia)   The association was founded by the joint owners and inhabitants of a residential development (Wohnhausanlage) in Linz comprising some 450 apartments and 30 shops.   The aim of the association was to improve communication between the members by establishing an internal cable television system, the programme of which was to be limited to questions of common concern relating to their property rights.   On 9 June 1978 the association applied to the Linz Regional Directorate of Post and Telecommunications (Post- und Telegraphen- direktion) for a licence under the Telecommunications Act (Fernmelde- gesetz, Fed. Law Gazette No. 170/1949).   As no decision was handed down within the statutory time-limit of six months as stipulated in Section 73 of the Code of General Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz), the association asked for a transfer of jurisdiction (Devolution) to the Federal Ministry of Transport - Directorate General of Post and Telecommunications (Bundesministerium für Verkehr - Generaldirektion für die Post- und Telegraphen- verwaltung).   On 23 November 1979 the Ministry rejected the application essentially on the ground that in substance the association intended to establish a private radio station for which there was no legal basis under Austrian law.   The Ministry observed that the Federal Constitutional Law for Securing the Independence of Broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette No. 396/1974, hereafter referred to as Constitutional Law on Broadcasting) had reserved to the federal legislation the regulation of broadcasting and its organisation.   Any broadcasting therefore could take place only on the basis of a special federal law.   Such a federal law only existed for the public "Austrian Broadcasting Corporation" (Österreichischer Rundfunk - ORF; cf. Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks, Federal Law on the Functions and the Organisation of the Austrian Broadcasting Corporation, Fed. Law Gazette No. 397/1974), and therefore no one else was entitled to operate a radio station, including "active cable television".   There was accordingly no legal basis for granting the licence requested by the applicant association.   In so far as the association had invoked Article 10 of the Convention, the Ministry referred to the last sentence of paragraph 1 of this provision.   In the Ministry's opinion the Austrian constitutional legislature had made use of the authorisation to require the licensing of broadcasting enterprises by reserving special legislation for the operation of any radio station ("Von dem ... Genehmigungsvorbehalt hat der österreichische Verfassungsgesetzgeber Gebrauch gemacht, indem er beschlossen hat, dass Rundfunk jeweils nur nach Erlassung eines eigenen Bundesgesetzes betrieben werden darf").   The applicant association's constitutional complaint against this decision was rejected by the Constitutional Court (Verfassungs- gerichtshof) on 16 December 1983 (Collection of Constitutional Court decisions No. 9909/83).   The Constitutional Court observed that Article 10 of the Convention included the right to impart information and ideas inter alia through broadcasting.   However, this right was subject to the   restrictions stipulated in the last sentence of paragraph 1 (authorisation of the State to introduce a licensing requirement) and in paragraph 2 (authorisation of the State to subject the exercise of broadcasting freedom to certain legal restrictions). Having regard to the admissibility of such legal restrictions, an administrative decision could violate the right to operate a radio or television station only if it was taken without a legal basis, if the law applied was unconstitutional, or if it was applied in an arbitrary manner (denkunmögliche Gesetzesanwendung).   However, the decision complained of had not interpreted the Constitutional Law on Broadcasting in an arbitrary manner.   The wording of this Constitutional Law suggested that its aim was to introduce a licensing requirement and that the special legislation referred to therein was not intended to prescribe the limitations, but the conditions for any broadcasting which thereby was required to comply with the principles of objectivity and pluralism.   This constitutional aim could not be achieved if, in the absence of legislation, anybody would be entitled to broadcast free from any restrictions.   As a law had so far only been enacted for the Austrian Broadcasting Corporation, without providing for licences to other broadcasting enterprises, only the Corporation was legally entitled to broadcast.   This was also the predominant view of legal writers and the Austrian Supreme Court (Oberster Gerichtshof). Article 10 of the Convention authorised a licensing requirement as stipulated in the Constitutional Law on Broadcasting, and therefore was not violated.   The Constitutional Court then examined what activities were to be regarded as broadcasting within the meaning of the above Constitutional Law.   It found that, according to legal doctrine, broadcasting included active cable broadcasting (active cable television) which therefore fell within the scope of the Constitutional Law and its implementing legislation.   The applicant association's view that its cable television system was not to be qualified as broadcasting because it was addressed to a limited audience, was misconceived.   The persons who could receive the programme were not predetermined and individualised, they were potentially all people present in several hundred apartments and shops and therefore constituted a general public.   Finally, it was to be determined whether the telecommunication authorities had been competent to refuse an authorisation exclusively on the basis of the broadcasting legislation.   The court found that these authorities were competent for the granting of licences under the Telecommunications Act and the Ordinance on Private Telecommunication Installations (Privatfernmeldeanlagenverordnung, Fed. Law Gazette No. 239/1961).   It noted that they had not raised any objections against the installation planned by the applicant association from a technical point of view, and that the Constitutional Law on Broadcasting did not contain express provisions on the application of the broadcasting legislation by those authorities.   However, the court considered that this Constitutional Law was to be applied by all authorities which could influence the operation of broadcasts and that the Telecommunications Act and the Ordinance on Private Telecommunication Installations were accordingly to be read subject to the proviso that "an authorisation for the setting-up and operation of telecommunication installations intended to engage in broadcasting in the meaning of Article I paragraph 1 of the Constitutional Law on Broadcasting may not be granted by the telecommunication authorities before a federal law on the subject has been enacted in accordance with Article I para. 2 of this Constitutional Law".   The Constitutional Court concluded that there had been no violation of Article 10 of the Convention nor of any other constitutional provision.   It referred the case to the Administrative Court (Verwaltungsgerichtshof) as requested by the applicant association.   The Administrative Court rejected the association's complaint by a decision of 10 September 1986 which was served on the association on 17 October 1986.   It essentially confirmed the views expressed by the Constitutional Court which had been criticised by the applicant association.   In particular, it rejected the argument that the Telecommunications Act could be seen as a special law referred to by the Constitutional Law on Broadcasting and that the latter Constitutional Law could not be applied by the telecommunication authorities.   Even though the Telecommunications Act did not prohibit broadcasting, the telecommunication authorities were required to comply with the constitutional principle laid down in Article 18 para. 1 of the Federal Constitution (Bundes-Verfassungsgesetz) according to which all administrative acts could be taken only on the basis of the law, and to examine in this context whether the provisions of the Constitutional Law on Broadcasting created an obstacle for granting the authorisation requested.   Neither the Telecommunications Act nor any other legal provision gave the applicant association a right to be granted this authorisation, and therefore its refusal had not been unlawful.   Nor did the Administrative Court find the reasons of the refusal self-contradictory or insufficient as alleged by the applicant association.   b)Application No. 15041/89 (Mr. Jörg Haider)   This applicant states that in the years 1987-1989 he had plans to establish jointly with others a private radio station in Carinthia. However, those plans had to be abandoned because an examination of the legal situation in Austria revealed that there was no legal possibility of obtaining a licence.   In support of this submission the applicant has submitted a letter dated 14 January 1992 from a financial consultant in Klagenfurt who had assisted him in the matter.   The Government do not contest that the applicant actually pursued plans to set up a private radio station.   The applicant has not taken any domestic proceedings.   He states that it would not have been reasonable for him to apply for a radio licence the grant of which was excluded by the Austrian legislation as interpreted by the Constitutional Court, in particular in its above judgment concerning the case of Informationsverein Lentia.   He furthermore states that he could not reasonably be expected to provoke an administrative decision by operating a radio station illegally.   He finally refers to a referendum requested by the Liberal Party of which he is the Chairman and which aimed at the abolition of the public broadcasting monopoly in Austria.   c)Application No. 15717/89, Arbeitsgemeinschaft Offenes Radio (AGORA)   This applicant association is a member of the Fédération européenne des radios libres (FERL) and subscribes to the principles of the draft European Charter of Free Radios elaborated by this organisation.   Its aim is to promote pluralism of the media and liberalisation of broadcasting in the whole Austrian territory as well as to establish a multicultural radio station in Carinthia.   This station would transmit a bilingual or multilingual non-commercial programme financed by contributions of the listeners and provide an open forum for groups of persons who otherwise lack access to audiovisual media.   A particular target group would be the population of the bilingual area of Southern Carinthia, and for this purpose the programmes would be moderated in both the German and Slovene languages. Particular efforts would be made for the promotion of the Slovene language and culture and the interests of the Slovene linguistic minority in general.   There would also be co-operation with other local radio stations in Yugoslavia and Italy to reflect the multilinguistic identity of the region (Alpen-Adria-Raum).   The proponents of this radio station already operate a mobile station on Italian territory on the basis of an Italian radio licence.   The installations could be transferred to Austria at any time.   In 1988 the association took proceedings to obtain a licence for a private radio station.   The application was rejected by the Klagenfurt Regional Directorate of Post and Telecommunications on 19 December 1989.   This decision was confirmed by the Federal Ministry for Public Economy and Transport - Directorate General of Post and Telecommunications (Bundesministerium für öffentliche Wirtschaft und Verkehr - Generaldirektion für die Post- und Telegraphenverwaltung) on 9 August 1990, and by the Constitutional Court on 30 September 1991. The decisions rely on the Constitutional Court's earlier case-law, in particular in the case of Informationsverein Lentia.   d)Application No. 15779/89 (Mr. Wilhelm Weber)   This applicant is the shareholder of an Italian company which operates a private radio station transmitting broadcasts to Austria on a commercial basis.   He is interested in operating such a radio station himself on Austrian territory.   He did not take any proceedings for obtaining a radio licence in Austria, since in his view an application for such a licence would not have had any prospects to succeed, having regard to the state of the legislation and its interpretation by the Constitutional Court.   e)Application No. 17207/90 (Radio Melody Ges.m.b.H.)   One of the aims of the applicant company is to set up and operate a private local radio station in Salzburg.   To this end it applied on 8 November 1988 to the Linz Regional Directorate of Post and Telecommunications to be granted a licence and to be attributed a frequency band.   The Regional Directorate rejected the application on 28 April 1989.   Its decision was confirmed by the Federal Ministry for Public Economy and Transport - Directorate General of Post and Telecommunications on 12 July 1989 and by the Constitutional Court on 18 June 1990.   The decisions rely on the Constitutional Court's earlier case-law, in particular in the case of Informationsverein Lentia.   The applicant company refrained from complaining to the Administrative Court since that Court is not competent to review legislation as to its conformity with the constitutional law or the Convention.   B.RELEVANT LEGISLATION   The Constitutional Law on Broadcasting (Bundesverfassungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks, Fed. Law Gazette No. 396/1974) describes broadcasting (Article I para. 1) as a public task (Article I para. 3) and reserves its regulation to the federal legislation which is required to observe certain principles including objectivity and impartiality of information, pluralism of opinions, well-balanced programmes, and independence of the persons and bodies entrusted with functions of broadcasting (Article I para. 2).   This Constitutional Law has been implemented by the Federal Law on the Functions and the Organisation of the Austrian Broadcasting Corporation (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks, Fed. Law Gazette No. 397/1974, hereafter referred to as the Broadcasting Act) which set up the Austrian Broadcasting Corporation as an economic unit with legal personality entrusted with the function of supplying the public with broadcasts according to certain criteria.   Apart from those mentioned in the above Constitutional Law (repeated in Section 2 para. 2 of the Act) they include:   a) As regards the number of programmes   - even and steady supply to the whole population in Austria, according to current technical standards of reception in so far as economically feasible, with at least two television and three radio programmes (Section 3 para. 1), one of the latter being a regional programme which takes into consideration the particular interests of the Provinces (Section 3 para. 2);   - operation of a Government-sponsored short-wave radio programme for listeners abroad (Section 4);   b) As regards the content of the programmes   - the comprehensive information of the public of all important political, economic, cultural and sports events by objective selection and dissemination of news and reports; transmission and conveyance of comments, opinions and critical statements of importance for the public having due regard to the plurality of views represented in public discussions; own comments and analysis based on the principle of objectivity (Section 2 para. 1, sub-para. 1);   - dissemination and promotion of education, art, science and sport, as well as entertainment (Section 2 para. 1, sub-paras. 2-5);   - planning of the programme as a whole having due regard to the importance of legally recognised churches and religious communities (Section 2 para. 3);   - providing broadcasting-time to political parties represented in Parliament and to interest groups, to a degree which does not exceed 1% per programme, the broadcasting-time being distributed between the various groups according to their importance in public life (Belangsendungen, Section 5 para. 1);   - providing broadcasting-time on radio and television for paid commercials (Section 5 para. 3).   The Broadcasting Act furthermore contains detailed provisions on the organisation of the Austrian Broadcasting Corporation.   Apart from the Director General (Generalintendant) its organs are collegiate bodies including the Governing Board (Kuratorium), the Board of Listeners and Spectators (Hörer- und Sehervertretung), and the Board of Audit (Prüfungskommission).   In addition, a "Commission for Safeguarding Observance of the Broadcasting Act" ("Kommission zur Wahrung des Rundfunkgesetzes") was set up outside the organisational framework of the Corporation.   According to the Act these bodies and their members are independent and free from instructions.   The Director General (Sections 9 and 10) is equally independent and free from instructions (Section 6 para. 2), but his appointment can be terminated at any moment by a decision taken with a two-thirds majority by the Governing Board.   In particular he is competent for laying down general programme guidelines, elaboration of the long-term programme, staff plans, etc., and he may also delegate certain tasks to other Directors (Direktoren, Programmintendanten, Landesintendanten) whom he has to control and co-ordinate.   The Governing Board (Sections 7 and 8) takes all decisions of importance, including the appointment and dismissal of the Director General and other Directors, adoption of long-term plans on programme techniques and finance, fixing of broadcasting contributions and other fees, approval of collective agreements, settling fundamental problems of broadcasting and programmes, and attribution of transmission-time to interest groups.   It is composed of 30 members, including:   - six members appointed by the Government on the basis   of proposals by the political parties according to their   representation in Parliament;   - nine members appointed by the Provinces;   - four members appointed by the Federal Government;   - six members appointed by the Board of Listeners and   Spectators;   - five members appointed by the Central Works Council   (Zentralbetriebsrat) of the Austrian Broadcasting   Corporation.   The decisions are taken by simple majority and there is no provision on minority rights or on the articulation of opinions other than that of the majority.   The Board of Listeners and Spectators (Sections 15 and 16) has the following tasks: appointment of six members of the Governing Board by a two-thirds majority, proposals for the nomination of four members of the "Commission for Safeguarding Observance of the Broadcasting Act", applications to the latter Commission, and making proposals for the programmes, technical improvements, etc.   But for the above-mentioned exception it takes its decisions by simple majority.   The Board is composed of 35 members, including:   - 15 members appointed by professional organisations and interest groups, i.e. the Chamber of Commerce (Bundeskammer der gewerblichen Wirtschaft), the Conference of the Presidents of the Chambers of Agriculture (Präsidentenkonferenz der Landwirt- schaftskammern), the Conference of the Workmen's Chambers (Arbeiterkammertag), the Chambers of the liberal professions, the Austrian Trade Union Federation (Österreichischer Gewerkschaftsbund), the Christian Churches and the Academies of the political parties (politische Akademien);   - 20 members appointed by the Federal Chancellor to represent various groups of society, i.e. science, education, art, sport, youth, elderly people, parents and families, tourism, motorists and consumers, having regard to proposals of institutions and organisations representative of these groups.   The "Commission for Safeguarding the Observance of the Broadcasting Act" (Sections 25-27) exercises a "subsidiary and limited legal control" over the Austrian Broadcasting Corporation, in so far as the matter does not come within the jurisdiction of a court of law or of another administrative authority.   In particular, it decides on alleged violations of the Broadcasting Act, especially alleged violations of the principle of objectivity.   It is composed of 17 members appointed by the Federal President upon proposals of the Federal Government for a period of four years, including:   - nine judges proposed by the President of the Supreme Court, the Presidents of the four Courts of Appeal, a representative professional organisation of judges, the Conference of Austrian Bar Councils (Rechtsanwaltskammertag), and the Chamber of Notaries;   - four members proposed by the Central Works Council;   - four members proposed by the Board of Listeners and Spectators.   Decisions are taken by simple majority of Chambers composed of three judges and one member from each of the other groups.   The decisions can be challenged before the Constitutional Court, but not before the Administrative Court.   They are of a declaratory nature and do not entail any direct legal consequences for the employees concerned of the Austrian Broadcasting Corporation which is obliged to comply with those decisions.   The journalists employed by the Austrian Broadcasting Corporation (Section 17) are independent and responsible for the programmes which they produce.   The Corporation is required to respect their journalistic freedom within the limits of the Broadcasting Act, in particular it may not order them to produce and accept responsibility for programmes which would be in conflict with that freedom. Legitimate refusals by the journalists may not be sanctioned.   The observance of these principles is safeguarded by the Statute of Journalists (Redakteursstatut) concluded between the Corporation and the elected representation of the journalists (Section 18).   This Statute provides, inter alia, that, in order to fulfil the Corporation's programme requirements, the journalists preparing programmes under their responsibility must also include contributions which are in conflict with their own personal views.   Journalists called upon to select programmes may reject or amend contributions. In cases of "substantial" interference this requires the consent of the journalist who has prepared the programme.   If no agreement can be reached, the programme should, if possible, be postponed.   If this is not possible, the journalist concerned has the right not to be named and can refuse responsibility (Section 3 para. 2 of the Statute). Eventually, a settlement or arbitration procedure may take place in such cases (Section 3 paras. 3-8). The Broadcasting Act does not prohibit other broadcasting enterprises than the Austrian Broadcasting Corporation, but due to the inactivity of the legislature there is no legal basis on which such enterprises could operate.   In particular the Telecommunications Act (Fernmeldegesetz, 1949) and the Ordinance on Private Telecommunications Installations (Privatfernmeldeanlagenverordnung, 1961) issued under it do not provide such a basis although they contain provisions on radio licences.   This view has been confirmed by the Austrian Constitutional Court (Verfassungsgerichtshof) in a decision of 16 December 1983 (Collection of Constitutional Court decisions   No. 9909/83 - Informationsverein Lentia, see above).   On the other hand the Constitutional Court has held that, under Article 10 of the Convention, the broadcasting monopoly must be exercised in compliance with the principles of objectivity and pluralism, by well-balanced programmes offered by the public Broadcasting Corporation (decision of 27 June 1986, Collection of Constitutional Court decisions No. 10948/85 - Impala / Die ganze Woche).   This may imply restrictions on journalistic freedom. The "Commission for Safeguarding Observance of the Broadcasting Act" found a violation of the principle of objectivity in critical and provocative questions as well as in the expression of their own views by journalists who had interviewed the Federal President Dr. Waldheim (decision No. 438/5 - RFK 88 of 3 May 1988).   This decision was quashed by the Constitutional Court, but the latter stated that the principle of objectivity as laid down in the Constitutional Law on Broadcasting and in the Broadcasting Act limited the freedom of expression of journalists employed by the Austrian Broadcasting Corporation (decision No. 12086/89 of 21 June 1989).   The Constitutional Court cannot examine the compatibility of the Constitutional Law on Broadcasting as such with Article 10 of the Convention.   In a Constitutional Court decision of 14 October 1987 (decision No. 11500/87 - Miltner) it was stated that a conflict between the Convention and other provisions of Austrian constitutional law could not be resolved by finding an unconstitutionality of these provisions. If in such a case there was a breach by Austria of her international obligations under the Convention, this could only be taken up before the Convention organs in Strasbourg.   The inactivity of the legislature, i.e. its failure to enact legislation as a basis for broadcasting by others than the Austrian Broadcasting Corporation cannot be challenged either before the Constitutional Court.   There is no legislation dealing specifically with the reception and retransmission of foreign broadcasts in Austria.   A number of private radio stations exist abroad near the Austrian border which transmit programmes specially directed at an Austrian audience, and there appears to be no interference by the Austrian authorities with the reception of these programmes.   This also applies to the programmes which the third and fourth applicants at present transmit from Italy. It further appears that in many local cable networks foreign television programmes can be received in Austria.   As from 1 July 1987 Austria was allocated by the International Telecommunications Union (I.T.U.) a number of additional frequencies for broadcasting purposes.   There are now five FM frequencies which can be used throughout the country, of which two can be regionalised, and a number of new local frequencies.   This is more than can actually be used by the public Broadcasting Corporation.   The continued justification of the Austrian broadcasting monopoly is being questioned by legal writers and media specialists and also by politicians of the big political parties, in particular the Liberal Party which has organised a referendum (Volksbegehren) for the abolition of the public broadcasting monopoly, but also the Conservative People's Party and members of the Socialist Party.   Various proposals have recently been made for liberalising the monopolistic structure of broadcasting in Austria.   They include plans for enabling others than the Austrian Broadcasting Corporation to prepare programmes which would still be transmitted by the services of the Corporation.   An agreement to this effect was concluded in 1987 by the Austrian Broadcasting Corporation with the League of Austrian Newspaper Editors (Verband Österreischischer Zeitungsherausgeber) for the establishment of a so-called "Print-Radio".   It was followed by the elaboration of a draft bill for an "Experimental Broadcasting Act" (Hörfunkversuchsgesetz) by the Broadcasting Corporation together with the Newspaper Editors.   This project, however, met with criticism because it limited access to broadcasting to owners of the media.   The Government themselves are now pursuing plans to enact legislation which would allow the establishment of local private radio stations outside the framework of the Austrian Broadcasting Corporation.   COMPLAINTS   All applicants complain that the broadcasting system which exists at present in Austria is not in line with the requirements of Article 10 of the Convention, in particular because it does not provide for any licensing procedure for private stations.   The applicants submit that in any event it is no longer justified to uphold a public broadcasting monopoly, or that at least the manner in which this monopoly is exercised in Austria is too restrictive to allow a really free flow of information and opinions.   It does not ensure that the freedom of expression, in particular that of minority groups, can be exercised to the degree now technically possible and required in a modern democracy.   In this context, in particular the second applicant submits that within the monopoly the required standard of objectivity and pluralism of opinions is not effectively ensured, political minorities thus being deprived of sufficient access to the audiovisual media.   The third applicant observes that the Broadcasting Act does not provide for the representation of ethnic minorities in the various organs of the Austrian Broadcasting Corporation and that the programmes intended for these minorities are insufficient.   The programme for the Slovene minority in Carinthia is limited to 50 minutes per day and allegedly does not sufficiently reflect the views and needs of the minority population itself.   This applicant therefore also complains of a violation of Article 14 of the Convention by an alleged discrimination of this minority as regards its right of access to broadcasting. The first applicant, too, complains of discrimination contrary to Article 14 of the Convention in that it is being treated differently from hotels, hospitals or institutions for elderly people whose internal cable television systems are not regarded as constituting broadcasting.   Finally, the fifth applicant complains of a violation of Article 6 of the Convention, more precisely of the right to legal protection by the courts.   In this respect it invokes the Klass case (No. 5029/79, Comm. Report 9.3.77, para. 59) where it was stated that different considerations from those applying to secret surveillance measures, to which Article 6 was found to be inapplicable, might arise "if interferences with the use of postal and telecommunications services would be directed against private activities involving the exercise of 'civil rights'.   That would be the case if ... the State could arbitrarily exclude people from the use of those services thereby destroying their private business".   The applicant company considers that this must also apply, mutatis mutandis, to the use of telecommunications services in the area of broadcasting.     PROCEEDINGS BEFORE THE COMMISSION   Application No. 13914/88 was introduced on 16 April 1987 and registered on 3 June 1988.   Application No. 15041/89 was introduced on 15 May 1989 and registered on 23 May 1989.   Application No. 15717/89 was introduced on 27 September 1989 and registered on 30 October 1989.   Application No. 15779/89 was introduced on 18 September 1989 and registered on 20 November 1989.   On 13 July 1990 the Commission examined the above four applications.   It decided to join the proceedings in Applications Nos. 15041/89, 15717/89 and 15779/89 and to give notice of all four applications to the respondent Government who were invited to submit observations in writing on their admissibility and merits before 31 October 1990.   This time-limit was subsequently extended, at the Government's request, until 14 November 1990.   The Government's observations on Application No. 13914/88 were submitted on 14 November, those on the other three applications on 15 November 1990.   The applicants were invited to submit observations in reply before 31 January 1991.   Only the third applicant submitted observations within this time-limit, on 29 January 1991.   The second and fourth applicants submitted their observations, after having been granted an extension of the time-limit, on 27 February 1991.   The first applicant, after having been reminded by the Commission's Secretariat that no observations had been received within the time-limit, stated that it had not considered further observations necessary.   It nevertheless submitted some observations on 15 May 1991.   In the meantime Application No. 17207/90 had been introduced on 20 August 1990 and registered on 26 September 1990.   On 12 July 1991 the Commission decided to give notice also of this application to the respondent Government and invite them to submit observations in writing on its admissibility and merits before 1 October 1991.   The Government submitted their observations on this application on 2 October 1991 and the applicant replied on 8 November 1991.   In the meantime, the Commission had decided on 3 September 1991 to invite the parties in Applications Nos. 13914/88, 15041/89, 15717/89 and 15779/89 to an oral hearing on the admissibility and merits.   On 6 December 1991 the Commission decided to include also Application No. 17207/90 in the hearing.   On 14 January 1992 the Commission decided to join all five cases.   The hearing took place on 15 January 1992.   At the hearing, the Government were represented by their Agent, Mr. Helmut Türk, who was assisted by Mrs. Sabine Bernegger, of the Federal Chancellery, and Mr. Rainer Fischer-See, of the Austrian Broadcasting Corporation, Advisers.   The applicants were represented as follows: the first applicant by Mr. Georg Lehner, a lawyer practising in Linz; the second applicant, who was present himself, by Mr. Dieter Böhmdorfer, assisted by Mrs. Susanne Riess, Mr. Walter Meischberger and Mr. Peter Westenthaler, Advisers; the third applicant, whose President, Mrs. Brigitte Busch, and a further member of the Governing Board, Mr. Vladimir Wakounig, were present, by Mr. Thomas Höhne; the fourth applicant by Mr. Dieter Böhmdorfer assisted by Mr. Walter Dillenz, Adviser; the fifth applicant by Mr. Wilfried Haslauer.   Furthermore, Mr. Hannes Tretter of the University of Vienna acted as Adviser for the second, third, fourth and fifth applicants.     THE LAW   1.All applicants complain of a violation of 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.   This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   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 applicants complain first of all that under the Austrian legislation, as interpreted by the Constitutional Court, they are unable to obtain licences for private radio stations or, in the case of the first applicant, for a private cable television system.   They observe that under Austrian constitutional law the operation of private radio stations or cable television systems is not as such inadmissible, but since implementing legislation has been enacted only in respect of the Austrian Broadcasting Corporation there exists a de facto monopoly of this Corporation.   In the applicant's view the legislature's failure to enact provisions which would allow others than the Austrian Broadcasting Corporation access to the audiovisual media is incompatible with Article 10 (Art. 10) which guarantees freedom of expression, including freedom to broadcast, to "everyone".   While it is true that the last sentence of Article 10 para. 1 (Art. 10-1) allows States to subject broadcasting and television enterprises to a licensing requirement, the applicants consider that this provision presupposes the existence of a licensing procedure which, however, is lacking in Austria.   Even if at the time of drafting the Convention broadcasting monopolies were regarded as being compatible with Article 10 (Art. 10), the Convention must, according to the applicants, be given a dynamic interpretation taking into account technical developments and changes in prevailing views.   Due to the technical progress in the area of radio and television the reasons which may earlier have justified broadcasting monopolies, in particular the constraints caused by the scarcity of available frequencies, have disappeared.   Simultaneously, the prevailing attitudes concerning the audiovisual media have undergone fundamental changes with the result that public broadcasting monopolies have been abolished in almost all European States.   In support of their view that broadcasting monopolies must now be seen as being incompatible with Article 10 (Art. 10), the applicants also rely on the fact that several Contracting States have entered specific reservations concerning such monopolies when they acceded to the Convention.   The applicants further invoke the case-law of the Convention organs.   They consider that at least since the Telebiella case (No. 6452/74, Sacchi v. Italy, Dec. 12.3.76, D.R. 5 p. 43) the Commission has abandoned its earlier view that a broadcasting monopoly could be justified under the last sentence of Article 10 para. 1 (Art. 10-1).   It follows from the judgments of the European Court of Human Rights in the cases of Groppera (28 March 1990, Series A no. 173) and Autronic (22 May 1990, Series A no. 178) that notwithstanding this provision restrictions in this area must also be justified under Article 10 para. 2 (Art. 10-2) of the Convention.   In the applicants' view this does not leave the last sentence of Article 10 para. 1 (Art. 10-1) without object because it allows the application of a licensing requirement even if this requirement could not be justified under Article 10 para. 2 (Art. 10-2).   The applicants contest the justification of the Austrian broadcasting monopoly under the latter provision.   They claim that there exists no urgent social need to maintain this monopoly which cannot therefore be regarded as being necessary in a democratic society.   In their view restrictions of access to the audiovisual media should in principle be limited to a regulation of the technical aspects.   It is not permitted to impose restrictions relating to the contents of the programmes which in substance amount to prior censorship.   In this context they oppose the argument that it is necessary to maintain the monopoly for the purpose of ensuring balanced programmes and plurality of opinions which in their view is not achieved having regard to the organisational structure of the Austrian Broadcasting Corporation.   In their view the necessary pluralism can also be ensured by competition between several broadcasting enterprises which need not necessarily by subjected to the same criteria concerning the preparation of their programmes as the existing monopolistic broadcasting enterprise.   The applicants observe that even in Austria itself the monopolistic structure of the audiovisual media has been undermined to a certain degree in that in wide areas programmes can be received from private radio stations transmitting from foreign soil.   These programmes are often directed especially at an Austrian audience.   In addition, foreign television programmes, including programmes of private stations, are also accessible to Austrians in many cable networks.   The Austrian authorities do not interfere with and even actively contribute to this situation, and therefore it is in the applicants' view particularly unreasonable if they do not allow the establishment of private stations in Austria where they could be better controlled.   The Government contest the applicants' arguments.   They claim that the first applicant has filed its application out of time because it should have submitted the case to the Commission within six months from the Constitutional Court's decision of 16 December 1983.   In the Government's view this was the final domestic decision within the meaning of Article 26 (Art. 26) of the Convention.   The applicant's further complaint to the Administrative Court did not in the Government's opinion constitute an effective remedy to be taken into account for the purposes of Article 26 (Art. 26).   While the Administrative Court was not formally bound by the Constitutional Court's earlier decision, it could not review the question of the constitutionality of the legislation underlying the administrative decision which the applicant sought to challenge, and this question was the heart of the matter.   Having regard to the express findings of the Constitutional Court according to which the activity intended by the applicant was to be qualified as broadcasting in the sense of the Austrian radio legislation, it was also unrealistic to assume that the Administrative Court would qualify this activity differently.   The Government therefore request that Application No. 13914/88 should be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   The Government accept that the other four applicants must be regarded as having complied with the requirements of Article 26 (Art. 26).   In the case of the second and fourth applicants who did not take any domestic remedies, they recognise that in view of the Constitutional Court's decision in the case of the first applicant such remedies would not have had any prospects of succeeding.   The Government also accept that these four applicants can claim to be victims within the meaning of Article 25 (Art. 25) of the Convention.   They were directly affected by the Austrian broadcasting legislation because they were in fact prevented from establishing private radio stations in Austria.   In this context the Government admit that