CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1995

.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. 19182/91                       by Telesystem Tirol Kabeltelevision                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1995, the following members being present:                Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, 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 29 November 1991 by Telesystem Tirol Kabeltelevision against Austria and registered on 10 December 1991 under file No. 19182/91;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       14 July 1994 and the observations in reply submitted by the       applicant on 10 October 1994;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the parties, may be summarised as follows:         The applicant company, a television company with limited liability, has its seat at Wörgl in Austria.   Before the Commission it is represented by Ms E. Berchtold-Ostermann, a lawyer practising in Vienna.   A.     Particular circumstances of the case         The applicant company was issued an authorization to establish a community antenna (Gemeinschaftsantennenanlage) in the area of Wörgl. As such, the applicant company picked up television programmes which it transmitted to recipients by means of cable TV.         On 11 January 1989 the applicant company transmitted to its clients via cable TV information concerning inter alia the confessional hours of the Wörgl parish; new year's wishes of a Wörgl business association; the schedule of a ski jumping competition; the schedule of the play "If I were you, doctor" ("wenn ich Sie wäre, Herr Doktor") of the local drama group; and the closure of a local skilift on account of repairs.          On the same day the Tirol and Vorarlberg Regional Postal Administration (Post- und Telegraphen Direktion für Tirol und Vorarlberg) informed the applicant company that the broadcasting of this kind of information was irregular.         On 12 January 1989 the applicant company filed a request to introduce (einspielen) its own programmes into its cable TV.   This request was dismissed on 16 January 1989 by the Regional Postal Administration on the ground that Section 20 para. 1 of the Radio Broadcasting Ordinance (Rundfunkverordnung, see below Relevant domestic law and practice) permitted community antennae only to pick up programmes and transmit them to clients, not to introduce their own programmes into the cable network.         The applicant company filed an appeal against this decision which was dismissed on 17 February 1989 by the General Direction of Post and Telecommunications (Generaldirektion für die Post- und Telegraphenver- waltung).   In its decision the General Direction referred in particular to the decision of the Constitutional Court of 16 December 1983 (see below, Relevant domestic law and practice).         The applicant company filed a further appeal which was dismissed by the Constitutional Court (Verfassungsgerichtshof) on 26 November 1990.   The Court considered that in the light of its own decision of 16 December 1983 the appeal offered no prospects of success and referred the case for decision to the Administrative Court (Verwaltungsgerichtshof).         On 18 September 1991 the Administrative Court dismissed the appeal.   The Court considered that the applicant company, rather than receiving and transmitting information, creatively prepared programmes destined for the general public.   In the light of the Constitutional Court's decision of 16 December 1983 the authorization to broadcast could not therefore be granted.   B.     Relevant domestic law and practice   1.     Telecommunications Act of 13 July 1949 ("Fernmeldegesetz")         According to Section 2 para. 1 of the Telecommunications Act, "the right to set up and operate telecommunication installations is vested exclusively in the federal authorities" ("Das Recht, Fernmeldeanlagen zu errichten und zu betreiben steht ausschliesslich dem Bunde zu").   Section 3 envisages the authorization for private persons or institutions to operate broadcasting installations.   Section 5 lists instances where broadcasting installations may be set up without authorization, e.g. within the boundaries of a private property.   2.     Private Telecommunication Installations Ordinance (1961) ("Verordnung des Bundesministeriums für Verkehr und Elektrizitäts- wirtschaft über Privatfernmeldeanlagen")         The Ordinance on Private Telecommunication Installations of 1961 concerns all broadcasting installations which, on the basis of the Telecommunications Act, are subject to Federal supervision (Section 1). The Ordinance states inter alia the conditions for the setting up and operation of private broadcasting installations.   However, according to the decisions of the Austrian courts and administrative authorities, these provisions cannot constitute the basis for granting licences to private applicants.   3.     Constitutional Broadcasting Act of 10 July 1974 ("Bundesverfas- sungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks")         Section 1 of the Constitutional Law of 10 July 1974 states:   <Translation>         "(2) Broadcasting shall be governed by more detailed rules to be       set out in a federal law.   Such a law must inter alia contain       provisions guaranteeing the objectivity and impartiality of       reporting, the diversity of opinions, balanced programming and       the independence of persons and bodies responsible for carrying       out the duties defined in paragraph 1.         (3)   Broadcasting within the meaning of paragraph 1 shall be a       public service."   <Original>         "(2) Die näheren Bestimmungen für den Rundfunk und seine       Organisation sind bundesgesetzlich festzulegen.   Ein solches       Bundesgesetz hat insbesondere Bestimmungen zu enthalten, die die       Objektivität und Unparteilichkeit der Berichterstattung, die       Berücksichtigung der Meinungsvielfalt, die Ausgewogenheit der       Programme sowie die Unabhängigkeit der Personen und Organe, die       mit der Besorgung der im Abs. 1 genannten Aufgaben betraut sind,       gewährleisten.         (3)   Rundfunk gemäss Abs. 1 ist eine öffentliche Aufgabe."   4.     Radio Broadcasting Ordinance of 1965 ("Rundfunkverordnung")         Section 20 para. 1 of the Radio Broadcasting Ordinance provides that the radio signals received must be transmitted immediately, completely and unaltered to the recipients.         According to S. 24 a of the Radio Broadcasting Ordinance, in the version of the amendment which entered into force on 31 July 1993, Federal Law Gazette (Bundesgesetzblatt) No. 507/1993, holders of an authorization to operate a community antenna may, without any special permit, disseminate cable text, using their own installations (paragraph 1).   Cable text includes services designed to impart information to the inhabitants of a community or region by means of written or graphical signs and symbols as well as by text screens provided as an additional service to subscribers (via a separate channel an using the vertical interval of the TV signal) (paragraph 2).   5.     Broadcasting Corporation Act of 1974 ("Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks")         The Broadcasting Corporation Act sets up the Austrian Broadcasting Corporation as an economic unit with legal personality entrusted with the function of supplying the public with broadcasts. These broadcasts must comply with certain criteria, for instance with regard to the number and quality of programmes.   The programmes must inform the public comprehensively of all important political, economic, cultural and sports events by objective selection and dissemination of news and reports.   6.     Constitutional Court's decision of 16 December 1983 (No. 9909/1983)         The Constitutional Court's decision of 16 December 1983 concerned programmes introduced into an internal cable television system.   The Court found inter alia that the aim of the Austrian Constitutional Broadcasting Act was to introduce a licensing requirement within the meaning of Article 10, para. 1, last sentence.   This aim could not be achieved if, in the absence of legislation, everybody was entitled freely to broadcast.   So far, a law had only been enacted for the Austrian Broadcasting Corporation.   It followed that only the latter could operate broadcasting.         According to the Constitutional Court's decision, broadcasting included active cable broadcasting which therefore fell within the scope of the Constitutional Broadcasting Act and its implementing legislation.   Under the Telecommunications Act and the Ordinance on Private Telecommunication Installations the telecommunications authorities were competent to grant broadcasting licences.   An authorization for the setting up and operation of broadcasting installations could not be granted by the authorities before a federal law on the subject had been enacted.   COMPLAINTS         The applicant company complains under Article 10 of the Convention that under Austrian law they are not permitted to broadcast programmes.   Rather, in Austria broadcasting is exclusively limited to the Austrian Radio Broadcasting Corporation.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 November 1991 and registered on 10 December 1991.         On 7 April 1994 the Commission decided to communicate the application to the respondent Government for observations on the admissibility and merits.         On 14 July 1994, after an extension of the time limit, the Government submitted their observations.   The observations in reply by the applicant were submitted on 21 April 1994;   THE LAW         The applicant company complains under Article 10 (Art. 10) of the Convention that it was not permitted under Austrian law to broadcast its own programmes, with a view to the general broadcasting monopoly of the Austrian Broadcasting Corporation.         Article 10 (Art. 10), so far as relevant, 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 Government submit that the applicant company can no longer claim to be a victim of a violation of its Convention rights within the meaning of Article 25 (Art. 25) of the Convention.   The Government point out that an amendment to the Radio Broadcasting Ordinance (Federal Law Gazette No 707/1993) entered into force on 31 July 1993. A new S. 24 a of this Ordinance allows the operators of community antennae to broadcast cable text with their facilities without prior permission.   According to S. 24 a para. 2 the term cable text means "services designed to impart information to the inhabitants of a community or a region by means of written or graphical signs or symbols as well as by text screens provided as an additional service to subscribers (via a separate channel ...)".   According to the Government the programme, which the applicant company was prohibited from broadcasting, would fall within the scope of the new law.         The applicant company contests the Government's view.   It submits in particular that the programme at issue also contained advertising for a number of events, whereas the above mentioned S. 24 a para. 2 of the Radio Broadcasting Ordinance does not allow commercial advertising via cable text.   Further, S. 24 a para. 2 does not allow to send films. The applicant company still considers itself to be a victim of a violation of its right to freedom of expression as regards these restrictions.   Moreover, it submits that the prohibition from broadcasting the information at issue lasted until the amendment of the Radio Broadcasting Ordinance entered into force.         The Commission recalls that someone, who has obtained adequate redress for an alleged violation of the Convention can no longer claim to be a victim (No. 10668/83, Dec. 13.5.1987, D.R. 52 p. 177; No. 12719/87, Dec. 3.5.1988, D.R. 56 p. 237).         In the present case the applicant company was prohibited from broadcasting programmes, which mainly contained information on local events, in January 1989 in accordance with S. 20 para. 1 of the Austrian Radio Broadcasting Ordinance, while the amendment to the said Ordinance only entered into force on 31 July 1993.   As regards this period, the contested prohibition was in accordance with Austrian law and the applicant company did not receive any redress or compensation for the alleged interference with its right to freedom of expression. Moreover, it cannot be said that the entry into force of the amendment of the Radio Broadcasting Ordinance resolved the applicant company's case, as it appears from the applicant company's submission that the broadcasting of some parts of the programmes at issue, e.g. advertisements, might again be prohibited.         In these circumstances, the Commission finds that the applicant company can still claim to be a victim of a violation of its Convention rights within the meaning of Article 25 (Art. 25) of the Convention.         As regards the compliance with Article 10 (Art. 10), the parties have not made specific submissions.   However, the Commission considers that this issue raises questions of fact and law which can only be determined by an examination of the merits.   It follows that the complaint cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)