CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.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. 21472/93                        by X. S.A.                        against the Netherlands         The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         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 November 1992 by X. S.A. against the Netherlands and registered on 5 March 1993 under file No. 21472/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, X. S.A., a limited company incorporated under the laws of Luxembourg, has its registered office in Luxembourg.   Before the Commission the applicant company is represented by MM. A.J.H.W.M. Versteeg and M. van Empel, who are lawyers, practising in Amsterdam.         The facts of the case, as submitted by the applicant company, may be summarised as follows.         The applicant company was founded by Dutch legal persons as a limited company under the laws of Luxembourg under the name F. S.A. and funded by Dutch investors. The applicant company changed its name on 1 September 1989 to X. S.A.         It holds an authorisation, granted by the Luxembourg authorities, to transmit its television programmes via the Luxembourg cable networks, and to this end the applicant company concluded contracts with Luxembourg cable network operators. These broadcasts were scheduled to start on 28 October 1989. Once transmitted in Luxembourg, the programmes were to be broadcast to the general public via the Astra satellite, which is operated by the Société Européenne de Satellite, and with which corporation the applicant company had concluded an agreement for the transmission of its programmes.         On 28 September 1989 the Commissariat for the Media (Commissariaat voor de Media), referring to the criteria formulated by the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) in the latter's decision of 30 August 1989 concerning the broadcasting corporation "Cable One" and after noting that the applicant company's executive management is mainly in the hands of two Dutch nationals, that the programmes at issue will mainly be transmitted to cable networks in Luxembourg and the Netherlands, that the applicant company had only concluded agreements with cable network operators in Luxembourg and the Netherlands and not in Flanders or any other places in Europe, that the programmes are mainly aimed at a Dutch audience, that the major part of the employees of the applicant company come from the Netherlands, that the canvassing for commercials will take place in the Netherlands and that in August 1989 the applicant company, declaring that it wished to avoid possible problems, had moved its activities from the Netherlands and Italy to Luxembourg, decided that the applicant company could not be regarded as a foreign broadcasting corporation within the meaning of Section 66 para. 1 of the Media Act (Mediawet). This decision implied that Dutch cable networks were not permitted to transmit the applicant company's programmes.         By letter of 9 October 1989 the applicant company filed an appeal under the Administrative Decisions Appeals Act (Administratieve Rechtspraak Overheidsbeschikkingen) against this decision with the Judicial Division of the Council of State.         Having considered the parties' oral and written submissions, the Judicial Division, in an interim decision of 11 May 1992, decided to stay the examination of the applicant's appeal. In this interim decision the Judicial Division rejected the applicant company's complaint that the Commissariat for the Media's decision of 28 September 1989 was contrary to Article 10 and Article 14 of the Convention and, insofar as the applicant company complained that the decision was contrary to EC regulations, decided to request a preliminary ruling by the Court of Justice of the European Communities in Luxembourg. These proceedings are currently pending.         The Judicial Division noted that the applicant company, which is no broadcasting institution within the meaning of the Media Act, presented itself as a new national broadcasting corporation, established at Aalsmeer, the Netherlands, with the explicit intention to be an innovation in the Dutch national television system and that it had immediately stopped its planned broadcasts after the decision of 28 September 1989 of the Commissariat for the Media. Having regard to these elements, the parties' submissions to the Judicial Division and its considerations in its decision of 30 August 1989 in a similar case (RO1.89.1485/Sp 90), the Judicial Division upheld the finding of the Commissariat for the Media, that the applicant company had established itself abroad with the apparent intention to circumvent the Dutch rules for domestic broadcasting institutions and that, therefore, the applicant company's programmes could not be regarded as programmes of a foreign broadcasting corporation within the meaning of Section 66 para. 1(a) of the Media Act.         The Judicial Division distinguished the applicant company's case from that of RTL-Véronique, observing that the responsible broadcasting corporation for that programme is the Compagnie Luxembourgeoise de Télédiffusion S.A., a company which is registered in Luxembourg and was already in 1931 established under the laws of that country.         Under Article 10 of the Convention, considered separately or in conjunction with Article 14 of the Convention, the Judicial Division, referring to its reasoning in its decision of 5 September 1990 (RO1.89.5554/Sp 295), held that the interference with the applicant company's rights under Article 10 para. 1 was justified under para. 2 of this article as being necessary for the prevention of disorder and for the protection of the rights of others. In respect of Article 14 of the Convention, the Judicial Division held that the difference made between Dutch and foreign broadcasting institutions has an objective and reasonable justification, namely the fact that certain restrictions, contained in the rules of the Dutch broadcasting system, for Dutch broadcasting institutions cannot be imposed on foreign broadcasting corporations as a result of EC rules. The Judicial Division added that the applicant company, as a non-foreign broadcasting corporation, was subject to the same rules as domestic broadcasting institutions, and that, therefore, there was no difference in treatment between the applicant company and domestic broadcasting institutions.   RELEVANT DOMESTIC LAW         Public broadcasting in the Netherlands is governed by the Media Act, which aims at a national public broadcasting system based on openness, diversity, non-commerciality and co-operation in order to guarantee full expression of the various shades of political, social and religious or philosophical opinions in the Netherlands. It lays down the requirements which have to be met by broadcasting institutions who wish to gain access to the Dutch public broadcasting system. If a broadcasting institution meets the requirements of the Media Act, broadcasting time and certain funds to finance broadcasting activities are allocated by the Commissariat for the Media.         Under the Media Act broadcasting institutions are under the obligation to provide a full programme and to eschew advertising. Only the Television and Radio Advertising Association (Stichting Etherreclame "STER") is allowed to broadcast commercials. The proceeds of these commercials is one of the sources for the funds the Commissariat for the Media allocates to broadcasting institutions.         Section 134 para. 1 of the Media Act entrusts the supervision of the observance of the Media Act to the Commissariat for the Media, which organ can impose a fine where it considers that the Media Act has been violated.         Section 65 of the Media Act, insofar as relevant, reads:   <Translation>         "1. The operator of a cable network transmits       simultaneously and in full length to all connected to the       cable network:         a. the programmes of institutions which have obtained       broadcasting time for national broadcasts;         b. the programmes of institutions which have obtained       broadcasting time for local and regional broadcasts (...);       (...)         d. the television programmes of the Dutch language section       of the Belgian public broadcasting service, insofar as       these can be received directly most of the time with a       reasonable quality at the place where the cable network is       located by the use of an antenna which can be considered as       regular having regard to the capacity of the cable network       (...).         (...)         3.    The operator of a cable network shall not transmit the       European programme (within the meaning of Section 16 para.       2 (e)), when this programme does not comply with the       requirements of Section 66 para. 1 (b) (...)."         Section 66 of the Media Act, insofar as relevant, provides:   <Translation>         "1. The operator of a cable network can:         a. transmit programmes which have been broadcast by a       foreign broadcasting institution by way of a broadcasting       station which can be received directly most of the time       with reasonable quality at the place where the cable       network is located by a regular individual antenna situated       at that place;         b. transmit other programmes than those referred to under       a. which have been broadcast, in accordance with the       legislation there in force, by a foreign broadcasting       institution or a composition of such institutions.   Insofar       as these programmes contain commercials, the transmission       thereof is only allowed when the commercials are dealt with       by a separate legal entity, when the commercials are       clearly identifiable as such and can be clearly       distinguished from other programme parts and are not       broadcast on Sundays, when the allocated broadcasting time       for commercials is at most five percent of the total       broadcasting time (...) and the proceeds thereof are fully       used for the production of the programme.         If however the above requirements are not met the       transmission of such a programme is also allowed when the       commercials it contains are not specifically aimed at a       Dutch audience.         2. For the application of what is contained in para. 1 (b)       a commercial will in any event be considered as       specifically aimed at a Dutch audience when the commercial       is broadcast during or following a programme part or a       connected whole of programme parts in which Dutch subtitles       or an item in the Dutch language occur.         3. Our Minister can grant an exemption from the prohibition       as contained in para. 1 (b) in respect of broadcasting       programmes which are broadcast in Belgium and aim at the       Dutch speaking audience in Belgium."         Section 70 para. 1 of the Media Act reads:   <Translation>         "With the exception of the programmes referred to in this       Chapter (Sections 65 up to and including 75), the operator       of a cable network shall not simultaneously broadcast other       programmes to more than one connected receiver."         In its decision of 30 August 1989 (RO1.89.1485/Sp 90) the Judicial Division established the following criteria to be met by broadcasting institutions if they are to be regarded as possessing foreign status: - the institution must be established under foreign law; - the institution must be established abroad; - the institution must keep its accounts abroad and be liable to local   taxes; - there must be no indication that the institution has been established   abroad with the evident intention of evading the statutory   regulations applicable in the Netherlands to national broadcasting   institutions; - the institution's programme schedule must first be broadcast abroad   and then transmitted from there to Dutch cable networks.         The wording of Section 66 para. 1(b) of the Media Act has recently been altered in that the rules in respect of commercials appearing in broadcasts of foreign broadcasting institutions are no longer included in the text of this provision. At present, in order to be eligible for transmission on Dutch cable networks, Dutch national broadcasting institutions must comply with the requirements under Dutch law and foreign broadcasting institutions must comply with the legislation of their own country.         The recent changes in the Media Act have not altered the position adopted by the Dutch authorities in respect of broadcasting companies, which are considered as being in fact Dutch broadcasting companies having established themselves abroad with the intention of evading the rules for domestic broadcasting institutions. Such companies are not regarded as foreign broadcasting institutions, but as national broadcasting institutions subject to the Dutch rules on broadcasting.   COMPLAINTS   1.     The applicant company complains that its rights under Article 10 of the Convention are unjustly interfered with, since, in view of the Judicial Division's decision of 11 May 1992, cable networks in the Netherlands cannot transmit the applicant company's programmes without exposing themselves to the risk of a fine being imposed on them by the Commissariat for the Media for failure to respect the Media Act.   2.2.   The applicant company complains under Article 14 in conjunction with Article 10 of the Convention that the Netherlands authorities' decision not to consider it as a foreign broadcasting company was discriminatory as two other broadcasting companies in a similar position, RTL-Véronique and Radio 10, were allowed on Dutch cable networks as foreign broadcasting companies.   THE LAW   1.     The applicant company complains that the Netherlands authorities' decision not to consider it as a foreign broadcasting company and thereby preventing their programmes from being transmitted by Dutch cable networks constitutes an unjust interference with its rights under Article 10 (Art. 10) of the Convention.         Article 10 (Art. 10) of the Convention provides 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 Commission notes that a preliminary ruling has been requested from the Court of Justice of the European Communities as to whether the refusal to accept the applicant company as a foreign broadcasting company is in conformity with EC rules and that the applicant's case before the Judicial Division of the Council of State has therefore not yet been finally decided. In these circumstances, the question could arise as to whether the applicant company has exhausted the domestic remedies within the meaning of Article 26 (Art. 26) of the Convention. However, the Commission does not find it necessary to answer this question, since the application is in any event inadmissible for the following reasons.         The Commission recalls that both broadcasting programmes over the air and cable retransmissions of such programmes are covered by the right enshrined in the first two sentences of Article 10 para. 1 (Art. 10-1) of the Convention (Eur. Court H.R., Groppera Radio AG and Others judgment of 28 March 1990, Series A no. 173, p. 22, para. 55). It finds that there has been an interference with the applicant company's rights under these two sentences.         The Commission further recalls that the purpose of the third sentence of Article 10 para. 1 (Art. 10-1) of the Convention is to make it clear that States are permitted to control by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects (ibid. p. 24, para. 61), and that since a State may enact legislation requiring the licensing of broadcasting enterprises, it must also be legitimate for that State to enact legislation which ensures compliance with the licence in question, in particular by preventing means of circumventing the conditions stated in the licence (cf. No. 10799/84, Dec. 17.5.84, D.R. 37 p. 236).         The Commission notes that, although the applicant company is incorporated under the laws of Luxembourg, the broadcasting of its programme via Dutch cable networks came under Dutch jurisdiction. The implicit prohibition to diffuse its programmes via Dutch cable networks was fully consistent with the rules of the Dutch Media Act, given that the applicant company, on the basis of its particular features, was not considered by the Judicial Division to be a foreign broadcasting company within the meaning of the Media Act and was therefore subject to the broadcasting rules of the Netherlands. However, the Judicial Division's decision was not based on technical considerations and the third sentence of Article 10 para. 1 (Art. 10-1) of the Convention, in the interpretation given to it by the Court, cannot be regarded as a sufficient justification of the implicit prohibition (Eur Court. H.R., Informationsverein Lentia and Others v. Austria, judgment of 24 November 1993, to be published in Series A no. 276, para. 32).         The question therefore arises whether the interference complained of was justified under para. 2 of Article 10 (Art. 10-2) of the Convention, namely whether it was "prescribed by law" and necessary in a democratic society for one or more of the legitimate aims specified in this provision.         The Commission notes that the decision of the Judicial Division of 11 May 1992, in which it found that the applicant company could not be considered as a foreign broadcasting company, was based on the Media Act. It is true that the Media Act does not contain a definition of a "foreign broadcasting company", but the mere fact that a legislative provision may give rise to problems of interpretation does not mean that it is so vague and imprecise as to lack the quality of "law" in this connection (Nos. 11553/85 and 11658/85, Dec. 9.3.87, D.R. 51 p. 136 with further references). The Commission finds that, in the present case, there was a sufficient legal basis and that the interference at issue was therefore "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         The Commission notes that the interference complained of was based on the Media Act which is aimed at maintaining a pluralistic and non-commercial broadcasting system and at protecting the diversity of expression of opinion in the Dutch broadcasting system. It therefore finds that the legitimate aim pursued was the protection of the rights of others within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         As to the question whether the interference complained of was "necessary", the Commission recalls that the term "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention implies that the interference must correspond to a "pressing social need" and be proportionate to the legitimate aim pursued. In determining whether an interference is "necessary" in a democratic society the Convention organs must also take into account that a margin of appreciation is left to the Contracting States. This margin of appreciation is of particular relevance in an area as complex and fluctuating as that of radio and television broadcasting, which is confirmed by Article 10 (Art. 10) of the Convention itself, in that it envisages in the third sentence of paragraph 1 (Art. 10-1-3) a licensing system for broadcasting enterprises.         In the present case the applicant company complains of not being considered as a foreign broadcasting company and, consequently, not being allowed to broadcast its programmes via the Dutch cable network as a foreign broadcasting company. The Commission notes that the recent changes in the Media Act have not affected the position of broadcasting institutions established abroad with the evident intention of evading the Dutch statutory regulations for national broadcasting institutions. They are not regarded as foreign broadcasting institutions, but as national broadcasting institutions subject to the rules on broadcasting applicable to such institutions.         The Commission further notes that, while the applicant company is incorporated under the laws of Luxembourg where it is also officially registered, the envisaged programmes at issue were primarily aimed at a Dutch audience.   In these circumstances and having regard to the fact that both the applicant company and its programmes have other strong links with the Netherlands, the Dutch authorities could reasonably consider that these broadcasts should be subject to those rules which normally apply to Dutch broadcasting institutions.   There is no indication that these rules, insofar as they are relevant to the present case, involve restrictions which would be in violation of Article 10 (Art. 10).         Under these circumstances, the Commission considers that the interference at issue may reasonably be regarded as necessary in a democratic society for the protection of the rights of others.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.2.   The applicant company further complains under Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention that the Netherlands authorities' decision not to consider it as a foreign broadcasting company was discriminatory as two other broadcasting companies in a similar position, RTL-Véronique and Radio 10, were accepted on Dutch cable networks as foreign broadcasting companies.         Article 14 (Art. 14) of the Convention provides as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         The Commission recalls that Article 14 (Art. 14) does not forbid every difference in treatment in the exercise of the rights and freedoms guaranteed by the Convention. It refers in this connection to the case-law of the Court concerning the criteria for assessing a difference in treatment, i.e. an objective and reasonable justification of a measure and a reasonable relationship of proportionality between the means employed and the aim sought to be realised (cf. Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, paras. 71-72; and Fredin judgment of 18 February 1991, Series A no. 192, p. 19, para. 60).         The Commission notes that the Judicial Division found a significant difference between the applicant company and RTL-Véronique. In view of this finding, the Commission is satisfied that the distinction made between RTL-Véronique and the applicant company, in that the former, unlike the latter, was accepted as a foreign broadcasting company, was based on objective and reasonable grounds.         It follows that in this respect there is no appearance of discrimination contrary to Article 14 (Art. 14) of the Convention.         Insofar as the applicant company complains that there was a discriminatory difference in treatment between Radio 10 and itself, the Commission notes that the applicant company has not raised this point before the national courts and, therefore, in this respect, has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.         It follows that the complaint regarding discrimination is partly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention and partly inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Second Chamber         President of the Second Chamber         (K. ROGGE)                                    (S. TRECHSEL)