CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 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. 19736/92                       by Radio ABC                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              MM.    C.L. ROZAKIS, President                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 30 December 1991 by Radio ABC against Austria and registered on 23 March 1992 under file No. 19736/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to :   -     the Commission's decision of 17 January 1995 to communicate the      application;   -     the observations submitted by the respondent Government on      24 March 1995 and the observations in reply submitted by the      applicant on 16 May 1995;        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 a non-profit making association with seat in Vienna. Before the Commission the applicant association is represented by Mr. H. Wille, a lawyer practising in Vienna.   A.    Particular circumstances of the case        On 28 August 1989 the applicant association requested the Vienna, Lower Austria and Burgenland Regional Postal Administration (Post- und Telegraphen Direktion für Wien, Niederösterreich und Burgenland) to grant it permission to establish and operate a radio installation and to allocate it a frequency for the purpose of broadcasting programmes in the Vienna area.        On 9 January 1990, the Vienna, Lower Austria and Burgenland Regional Postal Administration dismissed the applicant association's request. It referred to the Constitutional Broadcasting Act of 10 July 1974, which provides that broadcasting shall be authorised by federal law, and found that such a law had only been enacted with regard to the Austrian Broadcasting Corporation (Österreichischer Rundfunk). It followed that only the latter was allowed to operate broadcasting.        On 25 September 1990 the General Directorate of Post and Telecommunications (Generaldirektion für die Post- und Telegraphenver- waltung) dismissed the applicant association's appeal. It referred to the decision of the Constitutional Court of 16 December 1983 (see below, Relevant domestic law and practice) and recalled that according to the Constitutional Court the broadcasting monopoly of the Austrian Broadcasting Corporation was compatible with Article 10 of the Convention.        The applicant company lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). It submitted in particular that the decision of the General Directorate of Post and Telecommunications violated its right to receive and impart information and ideas under Article 10 of the Convention. Although this article allowed Contracting States to require the licensing of broadcasting enterprises, no licensing proceedings had been established in Austrian law. Therefore, everyone should be granted free access to broadcasting.        On 30 September 1991 the Constitutional Court dismissed the applicant association's complaint. The Court considered that in the light of its own decision of 16 December 1983 the appeal offered no prospects of success. The applicant's request that the case be transferred to the Administrative Court (Verwaltungsgerichtshof) remained unsuccessful.        Following the entry into force of the Regional Radio Act (Regionalradiogesetz - see below, Relevant domestic law and practice) on 1 January 1994, the applicant association on 17 April 1994 requested to be granted a broadcasting licence for one of the two frequencies available to private broadcasters in the area of Vienna. On 25 January 1995 the Regional Radio Authority (Regionalradiobehörde), in two separate decisions, dismissed this request. The authority, referring to S. 20 para. 2 of the Regional Radio Act, gave priority to other applicants. Thereupon, the applicant association lodged two complaints with the Constitutional Court. On 21 June 1995 the Constitutional Court ex officio introduced proceedings in order to review whether certain provisions of the Regional Radio Act were in accordance with the Constitution. All these proceedings are still pending.   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 telecommunications 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 Telecommunications 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.   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.   7.    The Regional Radio Act of 1993 (Regionalradiogesetz)        The Regional Radio Act, which entered into force on 1 January 1994, concerns licensing requirements for private local and regional radio broadcasters.        According to S. 2 of this Act the Federal Minister for Public Economy and Transport, by an ordinance, has to establish a plan for allocating the available frequencies to the Austrian Broadcasting Corporation and to the private broadcasters. S. 4 provides that the programmes offered by private radio broadcasters have to comply with the principles of objectivity and diversity of opinions and have to reflect in particular the public, cultural and economic life of the region in which they are broadcasted. Moreover, SS. 8 to 10 contain certain formal requirements. S. 13 establishes the Regional Radio Authority. S. 19 concerns the application for licences. S. 20 para. 2 provides that, if several private broadcasters, which fulfil the legal requirements, apply for one licence the Regional Radio Authority has to give priority to the applicant which best fulfils the objectives of this Act, e.g. in that it offers greater diversity of opinions.   COMPLAINTS        The applicant company complains under Article 10 of the Convention about the decisions by the Austrian authorities refusing it permission to establish and operate a radio station and to broadcast programmes in the area of Vienna. It submits in particular that in Austria, according to the contested decisions, a broadcasting monopoly of the Austrian Broadcasting Corporation existed.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 December 1991 and registered on 23 March 1992.        On 17 January 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 24 March 1995. The applicant replied on 16 May 1995.   THE LAW        The applicant company complains under Article 10 (Art. 10) of the Convention about the Austrian authorities' refusal to grant it permission to establish and operate a radio station in the area of Vienna, with a view to the general broadcasting monopoly of the Austrian Broadcasting Corporation.        Article 10 (Art. 10) 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 association 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. They refer in particular to the 1993 Regional Radio Act, which entered into force on 1 January 1994, and - subject to certain licensing requirements - introduced a possibility for private broadcasters to run local or regional radio programmes.        The applicant association contests the Government's view. It submits in particular that, upon its request under the Regional Radio Act, it was again refused a broadcasting licence for the area of Vienna. Moreover, the Constitutional Court, after having received the complaints by the applicant company and others about the refusal of licences, ex officio introduced proceedings in order to examine the constitutionality of some provisions of the said Regional Radio Act.        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. 13.5.87, D.R. 52 p. 177; No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237).        In the present case, the applicant association, in 1989, requested permission to broadcast radio programmes in the area of Vienna. In 1990, the competent authorities refused to grant this permission. They referred to the Constitutional Broadcasting Act which, in conjunction with the Broadcasting Corporation Act, established a broadcasting monopoly of the Austrian Broadcasting Corporation. The Regional Radio Act, which created a possibility for private radio broadcasters to obtain local or regional broadcasting licences, only entered into force on 1 January 1994. Until that time, the contested prohibition was in accordance with Austrian law and the applicant company did not receive any redress or compensation for the alleged violation of its right to freedom of expression. Moreover, the entry into force of the Regional Radio Act did not resolve the applicant's case, as it was again refused a licence for broadcasting programmes in the area of Vienna.        In these circumstances, the Commission finds that the applicant association 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 this complaint cannot 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 declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE,      without prejudging the merits of the case.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)