CEDH · CASELAW;REPORTS;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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                        Application No. 19182/91                  Telesystem Tirol Kabeltelevision                               against                               Austria                      REPORT OF THE COMMISSION                    (adopted on 18 October 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-10) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 11-15). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-22). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 23-30). . . . . . . . . . . . . . . . . . .4   III. OPINION OF THE COMMISSION      (paras. 31-43) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 31). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 32). . . . . . . . . . . . . . . . . . . . .6        C.    Article 10 of the Convention           (paras. 33-42). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 43). . . . . . . . . . . . . . . . . . . . .8   APPENDIX   :     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .9   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The applicant is a television company with limited liability, having its seat at Wörgl in Austria. It was represented before the Commission by Mrs. E. Berchtold-Ostermann, a lawyer practising in Vienna.   3.    The application is directed against Austria.   The respondent Government were represented by their Agent, Ambassador Mr. F. Cede, Head of the International Law Department at the Federal Ministry of Foreign Affairs.   4.    The case concerns the applicant company's complaint about the refusal of authorization to introduce its own programmes into its cable television net in view of the general broadcasting monopoly in Austria. The applicant company invokes Article 10 of the Convention.   B.    The proceedings   5.    The application was introduced on 29 November 1991 and registered on 10 December 1991.   6.    On 7 April 1994 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7.    The Government's observations were submitted on 14 July 1994, after an extension of the time-limit fixed for this purpose.   The applicant replied on 10 October 1994.   8.    On 17 January 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 27 January 1995 and they were invited to submit such further information or observations on the merits as they wished.   The applicant submitted observations on 7 March 1995.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   11.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, 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   12.   The text of this Report was adopted on 18 October 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto as Appendix I.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   16.   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 television.   17.   On 11 January 1989 the applicant company transmitted to its clients via cable television 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 ski lift on account of repairs.   18.   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.   19.   On 12 January 1989 the applicant company filed a request to introduce (einspielen) its own programmes into its cable television net. 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.   20.   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).   21.   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).   22.   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   23.   According to Section 2 para. 1 of the Telecommunications Act (Fernmeldegesetz), "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)   24.   The Private Telecommunication Installations Ordinance of 1961 (Verordnung des Bundesministeriums für Verkehr und Elektrizitäts- wirtschaft über Privatfernmeldeanlagen) 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   25.   Section 1 of the Constitutional Broadcasting Act (Bundesverfas- sungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks) 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   26.   Section 20 para. 1 of the Radio Broadcasting Ordinance (Rundfunk- verordnung) provides that the radio signals received must be transmitted immediately, completely and unaltered to the recipients.   27.   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 and using the vertical interval of the TV signal) (paragraph 2).   5.    Broadcasting Corporation Act of 1974   28.   The Broadcasting Corporation Act (Bundesgesetz über die Aufgaben und die Einrichtung des Österreichischen Rundfunks) 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)   29.   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.   30.   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.   III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   31.   The Commission has declared admissible the applicant company's complaint 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.   B.    Point at issue   32.   Accordingly, the issue to be determined is whether there has been a violation of Article 10 (Art. 10) of the Convention.   C.    Article 10 (Art. 10) of the Convention   33.   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."   34.   The applicant company submits that the decisions by the Austrian authorities, prohibiting it to broadcast its programmes, which mainly contained information on local events, violated its freedom to impart information. Austrian law failed to provide a licensing system for private broadcasters and, thus, led to a broadcasting monopoly of the Austrian Broadcasting Corporation. In addition, the applicant company submits that the amendment of the Radio Broadcasting Ordinance, which entered into force on 31 July 1993, has not fundamentally changed the situation. S. 24 a of the said Ordinance allows operators of community antenna to disseminate cable text. However, they are still prohibited from broadcasting films, cable text accompanied by spoken comments or commercial advertising.   35.   The Government have not made submissions on the merits of the complaint.   36.   The Commission finds that the prohibition complained of constitutes an interference with the applicant company's right to impart information. However, the Commission recalls that the third sentence of Article 10 para. 1 (Art. 10-1) permits Contracting States to regulate by a licensing system the way in which broadcasting is organised in their territories. This may lead to interferences whose aims will be legitimate under this sentence, even though they do not correspond to any of the aims set out in paragraph 2. (Eur. Court H.R., Groppera Radio AG and Others judgment of 28 March 1990, Series A no. 173, p. 24, para. 61; Informationsverein Lentia and Others judgment of 24 November 1993, Series A no. 276, p. 14-15, paras. 32-33).   37.   The Commission finds that the present case raises issues very similar to those, the Court dealt with in the case of Informations- verein Lentia. In that case, the Court found that the monopoly system operated in Austria is capable of contributing to the quality and balance of programmes and is consistent with the third sentence of paragraph 1 (Informationsverein Lentia and Others judgment, loc. cit.).   38.   However, the interference complained of must also satisfy the requirements set out in paragraph 2 of Article 10 (Art. 10-2) (Informationsverein Lentia and Others judgment, loc. cit.).   39.   In the present case the interference was prescribed by law, namely by the Radio Broadcasting Ordinance, as well as by the Constitutional Broadcasting Act in conjunction with the Broadcasting Corporation Act. Further, it served the legitimate aim set out above.   40.   As regards the notion of necessity, the Commission recalls that the Contracting States, in assessing the need for an interference, enjoy a margin of appreciation, but this goes hand in hand with European supervision. In cases, where there has been an interference with the rights and freedoms guaranteed in paragraph 1 of Article 10 (Art. 10-1), the supervision must be strict because of the importance of the rights in question (Informationsverein Lentia and Others judgment, loc. cit., p. 15, para. 35).   41.   The Commission considers that arguments similar to those which, in the case of Informationsverein Lentia, led the Court to find that the interferences flowing from the Austrian Broadcasting monopoly were not necessary in a democratic society, can be adduced in the present case (Informationsverein Lentia and Others judgment, loc. cit., p. 16-17, paras. 38-43). In particular, the programmes, which the applicant company was prohibited from broadcasting, were aimed at the needs of the local population, which cannot be taken into account by the Austrian Broadcasting Corporation, whose programmes are designed for the national or the regional level. However, Austrian law applicable at the relevant time, led to a total impossibility for private stations to introduce their own programmes, irrespective of their nature and objective and the audience addressed. Further, the authorities could not issue authorizations to broadcast subject to specified conditions or allow private participation in the activities of the national corporation. The amendment to the Radio Broadcasting Ordinance, which entered into force on 31 July 1993, was limited to the dissemination of cable text and did not, therefore, substantially alter the situation.   42.   In these circumstances, the Commission finds that the interference complained of was disproportionate and, therefore, not necessary in a democratic society within the meaning of Article 10 para. 2 (Art. 10-2).        CONCLUSION   43.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 (Art. 10) of the Convention.   Secretary to the First Chamber          President of the First Chamber          (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)