CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mars 1996

.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. 25987/94                       by Arnout W. HINS and Peter B. HUGENHOLTZ                       against the Netherlands        The European Commission of Human Rights sitting in private on 7 March 1996, the following members being present:              MM.    S. TRECHSEL, President                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              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 29 June 1994 by by Arnout W. HINS and Peter B. HUGENHOLTZ against the Netherlands and registered on 19 December 1994 under file No. 25987/94;        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 applicants are both Dutch nationals, born in 1952 and 1955 respectively, and reside in Amsterdam.        The facts of the case, as submitted by the applicants, may be summarised as follows.   a.    Particular circumstance of the present case        On 6 June 1986, the applicants requested a license for the installation and operation of a television transmitter in order to retransmit television programmes from foreign commercial broadcasting stations. They stated that they had the intention to install and exploit one or more regional television stations in the province of Noord-Holland and that the station(s) would be used to broadcast programmes in this region in addition to the programmes offered by the public broadcast service.        On 11 March 1987, the Minister of Transport, Public Works and Water Management (Minister van Verkeer en Waterstaat - hereinafter referred to as "the Minister") rejected the request, holding that pursuant to Section 2 of the Radio Broadcast Transmitter Act 1935 (Radio Omroep Zenderwet 1935) - as amended in 1983 - broadcast installations for regional broadcasts belong to the monopoly of N.V. Nozema. The Minister further held that, as the applicants had not been awarded any broadcasting time under the Broadcast Act (Omroepwet), no interest was served by issuing a licence which, on the basis of other statutory or other legal rules, could not be used.        The applicants filed an appeal against this decision with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State).        On 10 August 1989, following adversarial proceedings, the Judicial Division quashed the Minister's decision of 11 March 1987. It held that the Minister had failed to indicate on what grounds it was found that the applicants' request fell within the scope of Section 1 (a) of the Radio Broadcast Transmitter Act and not, as argued by the applicants, within the scope of Section 2 third sentence of that Act.        On 4 December 1989, the applicants filed a new request with the Minister. The Minister informed them by letter of 23 April 1990, inter alia, that in the meantime the Broadcast Act had been replaced by the Media Act (Mediawet), and that the latter Act does not require the allocation of broadcasting time or permission for relaying programmes from other Member States of the European Community.        As regards the question whether the authorisation sought would be contrary to the Radio Broadcast Transmitter Act, the Minister informed the applicants that this should be examined under Section 1 (a), as amended on 1 January 1988, and Section 2 para. 4 of that Act. However, given N.V. Nozema's priority right as regards the installation and use of broadcast transmitters under Section 2 para. 4, the Minister stated that, to this end, N.V. Nozema had been requested to contact the applicants directly in order to obtain all information required for reaching its decision and to determine its position speedily. The Minister adjourned the decision on the applicant's request pending the decision of N.V. Nozema.        On 21 May 1990, the applicants filed an objection (bezwaar) against the Minister's decision to adjourn his final decision. The Minister rejected their objection on 4 March 1991 as ill-founded.        Following the applicants' appeal against the decision of 4 March 1991, the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) decided on 27 January 1993 that, as regards the relaying of foreign programmes from other Member States of the European Communities, the N.V. Nozema does not enjoy a priority right. It decided that the Minister should determine the applicants' request within four months insofar as this request concerned relaying programmes from other Member States of the European Communities.        On 1 February 1993, the applicants requested the Minister, in addition to their previous request, to grant them an authorisation for a television transmitter network with an almost national coverage. The Minister rejected this request on 23 April 1993. In this decision it was stated, inter alia, that within a short delay frequencies were to be distributed in accordance with the broadcast frequency policy elaborated in consultation with the Dutch Parliament. The Minister did not consider it useful, in view of the costs and the time needed for installing transmitters, to allocate frequencies on a temporary basis pending a final allocation.        As the applicants had filed a petition (verzoekschrift) with the Industrial Appeals Tribunal in relation to the Minister's failure to take a new decision following the Tribunal's decision of 27 January 1993, the Minister, on 9 July 1993, decided to take an explicit decision although in his opinion it appeared from the applicants' submissions that they were aware of the fact that no television frequencies were available for their intended activities.        In his decision of 9 July 1993, the Minister examined the applicants' requests of 6 June 1986 and 4 December 1989, insofar as these requests concerned relaying programmes from other Member States of the European Communities, under Section 17 para. 7 (b) of the Telecommunications Facilities Act (Wet op de Telecommunicatievoor- zieningen) and in the light of the broadcast frequency distribution policy which had been established in the meantime.        The Minister noted that, according to information provided to Parliament, unused television frequencies are to be used for terrestrial digital radio and regional public broadcasts and that, therefore, no frequencies are left for (re)transmission of television programmes from foreign stations. The Minister further noted that this was confirmed in the provisional inventory of the remaining frequency capacity, which had been presented to Parliament on 23 December 1992 and in respect of which a final determination was imminent.        The Minister further noted that it was indicated in the provisional inventory that, in case the regional public broadcasting organisations would not be interested in using these frequencies, it could be possible to allocate these frequencies for (national) commercial broadcasts. The Minister stated, however, that already four public regional broadcasting organisations had shown interest in using television frequencies and that he intended, after having completed the consultations with Parliament, to finally determine the inventory of the available remaining frequency capacity in agreement with the Minister of Welfare, Health and Cultural Affairs. The Minister further stated that, once this determination has been completed, the regional public broadcasting organisations would be invited to state, within a reasonable time, whether or not they wished to avail themselves of these frequencies.        The Minister added, however, that in agreement with himself the Minister of Welfare, Health and Cultural Affairs had informed Parliament by letter of 16 June 1993 that, following the decision of 27 January 1993 of the Industrial Appeals Tribunal and a decision of 19 March 1993 of the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State), broadcast frequencies would in the future be allocated to selected commercial broadcasting organisations (omroepinstellingen) for commercial broadcasts. The Minister found that allocating frequencies to transmitter companies (zendermaatschappijen) did not fit into this policy.        After having noted that the applicants had failed to indicate which programmes they would relay the Minister held that in the allocation of scarce frequencies the public authorities had established a certain policy and that in a situation where frequencies were to be allocated to transmitter companies, who would then be able to conclude contracts for the transmission of certain programmes at their own discretion, it would be impossible to implement this policy established in agreement with Parliament. After having noted that, following further consultations with Parliament planned for September, the final inventory would be established and subsequently the procedure for frequency applications would be determined, the Minister rejected the applicants' request for relaying television broadcasts from foreign broadcasting stations under Section 17 para. 7 (b) of the Telecommunications Facilities Act.        The applicants' subsequent appeal against the decision of 9 July 1993 was, following adversarial proceedings in which a hearing was held on 18 November 1993, rejected by the Industrial Appeals Tribunal on 5 January 1994.        Noting that, on 1 January 1994, the General Administrative Law Act (Algemene Wet Bestuursrecht) had entered into force and the 1954 Industrial Appeals Act (Wet Administratieve Rechtspraak Bedrijfsorganisatie) had been amended, the Industrial Appeals Tribunal decided that, in accordance with the relevant transitory rules, the applicants' appeal was to be decided on the basis of the law as in force until 1 January 1994.        In the appeal proceedings before the Industrial Appeals Tribunal the applicants submitted six complaints, which were all rejected.        The first complaint concerned the fact that the Minister had not respected the time-limit of four months within which he should have determined the applicants' request. The Tribunal held that this could only entail consequences in the determination of damages flowing from the contested decision in case this decision would be quashed on another ground and that this was not the case.        The second complaint concerned the reservation for the regional public broadcast service of the frequency sought by the applicants, i.e. the frequency Alkmaar channel 55, 100 Kw ERP. The Minister submitted on this point that reserving frequencies emphasises the pluriformity of the broadcast system. The Minister referred in this respect to Section 30 of the Media Act according to which regional broadcasting organisations must make broadcasts fulfilling the requirement of pluriformity and that the programming policy is determined by a representative programming council.        As regards the second complaint, the Tribunal accepted the Minister's policy that regional frequencies are in principle reserved for the regional public broadcast service. The Tribunal noted that this policy had found a wide support in the Dutch Parliament. It further took into account that it is a part of this policy that if, after having been granted a reasonable time to decide, the regional public broadcasting organisations show no interest in using these frequencies, these frequencies may be offered to other interested parties. The Tribunal, noting that the programmes the applicants intended to retransmit were not specifically aimed at the public in the region at issue but at a foreign audience, did not find the Minister's position in the present case unreasonable.        The third complaint concerned the argument that the Minister's decision to grant a delay to the regional public broadcasting organisations was unreasonable as the "Stichting Radio Noord-Holland", the sole competent regional broadcasting organisation, had not expressed a wish to exercise its priority right as regards the allocation of the frequency sought by the applicants. The applicants argued that the result of this decision, i.e. leaving a frequency unused, is contrary to Article 10 of the Convention. The Tribunal held on this point that the Minister could grant regional public broadcasting organisations a reasonable delay for deciding whether and, if so, under which conditions they wish to broadcast television programmes and that pending such a delay a licence could be refused. In view of all implications of such a decision and of the fact that an allocation of a television frequency for commercial broadcasts cannot easily be reversed given the important investments involved, the Tribunal held that the fact that the relevant broadcasting organisation(s) had not (yet) or only in a non-committal way expressed interest could not entail the consequence argued by the applicants.        The fourth complaint was that the Minister's "broadcast frequency policy" at issue lacked a statutory basis and thus was contrary to Article 10 of the Convention. Referring to its above findings, the Industrial Appeals Tribunal rejected this complaint as being based on an erroneous conception of the law.        The fifth complaint raised by the applicants was that the decision of 9 July 1993 deprived them of the possibility to offer their services to tenders of foreign television programmes and thus constituted a restriction of the free movement of services contrary to Section 59 of the EC Treaty. The Industrial Appeals Tribunal held in this respect, referring to case-law of the Court of Justice of the European Communities, that to grant a priority right to the regional public broadcast service is not contrary to the applicable EC rules.        The sixth and last complaint was the alleged absence of a legal basis for the Minister's reasoning that regional broadcast frequencies in any event could not be allocated to transmitter companies who do not make programmes themselves. On this point the Industrial Appeals Tribunal agreed with the applicants that it is not possible to refuse a licence on the sole ground that the applicant is not a broadcasting company. However, it further found that the applicable rules do not prevent that a decision on a licence application, in the context of a wider policy, is weighed against other (potential) requests which are, either via a transmitter licence or otherwise, aimed at obtaining a frequency. In this connection it referred to its findings on the second complaint.        Insofar as the applicant had invoked Article 10 of the Convention, the Industrial Appeals Tribunal did not make any explicit finding under this provision.   b.    Relevant domestic law        Public broadcasting in the Netherlands is, as from 1 January 1988, governed by the Media Act, which aims at a 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.        The Media Act lays down the requirements which have to be met by broadcasting organisations who wish to gain access to the Dutch public broadcasting system. If a broadcasting organisation meets the requirements of the Media Act, broadcasting time may be allocated by the Commissariat for the Media (Commissariaat voor de Media) which, pursuant to Section 134 of the Media Act, supervises the observance of the Media Act.        The Radio Broadcast Transmitter Act 1935 contains the rules governing the installation and exploitation of broadcast transmitters. Pursuant to Section 1 (a) of this Act the N.V. Nozema (Naamloze Vennootschap Nederlandsche Omroep Zender Maatschappij) has been founded as an organ of co-operation between the Minister of Interior (Minister van Binnenlandse Zaken) and a number of representative national broadcasting organisations.        According to Section 2 of the Radio Broadcast Transmitter Act, N.V. Nozema is exclusively entrusted with the installation and exploitation of broadcast transmitters for which it does not need an authorisation within the meaning of the Telegraph and Telephone Act 1904 (Telegraaf- en Telefoonwet 1904).        Section 2 para. 4 of the Radio Broadcast Transmitter Act provides:   <Translation>        "No authorisation based on Section 17 of the Telecommunica-      tion Facilities Act for the installation and use of a      (broadcast transmitter) equipment shall be granted until      after the NOZEMA has been provided with the opportunity to      decide, on the ground of Section 1 para. 2, on the use and      exploitation of this equipment."        Pursuant to Section 17 of the Telecommunication Facilities Act, which on 1 January 1989 replaced the Telegraph and Telephone Act 1904, a Ministerial authorisation is required for the installation and use of broadcast equipments.        Under Section 17 para. 7 (b) of Telecommunications Facilities Act an authorisation cannot be granted when an efficient use of the air waves does not permit such a grant.   COMPLAINTS   1.    The applicants complain that the refusal to grant them a licence for the installation and operation of a television transmitter violated their rights under Article 10 of the Convention in that the interference with their rights under this provision cannot be regarded as justified.   2.    The applicants complain under Article 14 of the Convention that they were discriminated against in that priority was given to regional non-commercial broadcasting organisations. They submit that, in the absence of public funding, the only way to run a regional television station is by transmitting advertisements and contracting sponsors. In such a situation there is no relevant distinction between commercial and non-commercial broadcasters   3.    The applicants complain under Article 6 para. 1 and Article 13 of the Convention that they did not have an effective remedy against the refusal of the licence. They submit that in the proceedings before the Industrial Appeals Tribunal, which led to the decision of 27 January 1993, their argument based on Article 10 of the Convention was not dealt with. They further complain that the Minister altered the reasons for rejecting their request in the course of the proceedings at issue. The applicants find it unacceptable that the Government can submit new reasons on every occasion, while individuals have one chance only. They finally complain that, in the proceedings which resulted in the decision of 5 January 1994, the Industrial Appeals Tribunal dismissed their claims referring to Article 10 of the Convention, whereas instead it should have declared the Minister's decision overdue.   THE LAW   1.    The applicants complain that the refusal to grant them a licence for the installation and operation of a television transmitter violated their rights under Article 10 (Art. 10) of the Convention, both in itself and taken in conjunction with Article 14 (Art. 14) (Art. 10+14) 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."        Article 14 (Art. 14) of the Convention reads:        "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 first question the Commission must examine is whether there has been an interference with the applicants' rights under Article 10 para. 1 (Art. 10-1) of the Convention.        The present case concerns the refusal by the Dutch authorities to grant a television transmitter licence to the applicants. It thus relates principally to the freedom enshrined in Article 10 para. 1 (Art. 10-1) "to ... impart information and ideas without interference by public authority". The Commission finds that the refusal at issue constituted an interference with the applicants' right to impart information and ideas.        However, according to the third sentence of Article 10 para. 1 (Art. 10-1) of the Convention, Article 10 (Art. 10) does "not prevent States from requiring the licensing of broadcasting ... enterprises". Although the third sentence refers to "broadcasting" rather than to the reception and/or retransmission of broadcasts, by envisaging a licensing system, the Contracting States are allowed under this provision of the Convention to regulate, by way of a licensing system, broadcasting activities 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 of Article 10 (Art. 10-2) of the Convention (cf. Eur. Court H.R., Groppera Radio AG and Others judgment of 28 March 1990, Series A no. 173, p. 24, para. 61; and Informationsverein Lentia and Others judgment of 24 November 1993, Series A no. 276, pp. 14-15, paras. 32-33).        The Commission recalls that in a decision on the grant or refusal of a broadcasting licence regard may be had not only to technical aspects, but also to such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level and the needs of a specific audience (Informationsverein Lentia and Others judgment, loc. cit., p. 14, para. 32).        The Commission notes that in the present case the applicants sought a licence in order to relay television programmes from commercial foreign stations via a particular regional frequency and that this licence was refused as the regional public broadcasting organisation(s), enjoying a priority right as regards the allocation of broadcasting facilities, had not yet decided whether or not to start regional broadcasts.        The Commission further notes that, if regional public broadcasting organisations show no interest in using regional frequencies for broadcast activities aimed at the audience in that particular region, these frequencies may be offered to other interested parties. The Commission cannot find such a system incompatible with the third sentence of Article 10 para. 1 (Art. 10-1) of the Convention.        However, although the aim of the interference at issue is legitimate under the third sentence of paragraph 1 of Article 10 (Art. 10-1) of the Convention without corresponding to any of the aims set out in paragraph 2 (Art. 10-2) of this provision, the compatibility of this interference must nevertheless be assessed in the light of the other requirements of Article 10 para. 2 (Art. 10-2) of the Convention (Informationsverein Lentia and Others judgment, loc. cit., p. 14, para. 32).        As regards the question whether the interference is prescribed by law, the Commission recalls that the phrase "prescribed by law" in Article 10 para. 2 (Art. 10-2) must be given the same interpretation as the phrase "in accordance with the law" in Article 8 para. 2 (Art. 8-2) of the Convention (Eur. court H.R. Silver judgment of 25 March 1983, Series A no. 61, p. 33, para. 85). Where the Convention refers to domestic law, it is primarily the task of the national authorities to apply and interpret domestic law. The Convention organs have a limited jurisdiction in controlling the manner in which this is done (cf. No. 10689/83, Dec. 14.5.84, D.R. 37 p. 225 and Eur. Court H.R., Otto-Preminger-Institut judgment of 20 September 1994, Series A no. 295-A, p. 17, para. 45).        The phrase "prescribed by law", or the equivalent phrase "in accordance with the law" do, however, not merely refer back to domestic law, but also relate to the quality of the law. A norm must be formulated with sufficient precision and a law conferring a discretion is not in itself inconsistent with the requirement of foreseeability provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity (Eur. Court H.R., Olsson judgment of 24 March 1988, Series A no. 130, p. 30, para. 61; Kruslin and Huvig judgments of 24 April 1990, Series A no. 176-A and B respectively, pp. 22-25, paras. 30-36, and pp. 54-57, paras. 29-35).        The Commission notes that in the present case the applicants' request for a licence was rejected on the basis of Section 17 para. 7 (b) of the Telecommunications Facilities Act, under which a licence cannot be granted when an efficient use of the air waves does not permit such a grant. The Commission notes that the Minister's policy as regards the efficient use of air waves had received a wide support in the Dutch Parliament. The Commission finds it established that the applicants were sufficiently aware of the relevant statutory rules, the Minister's policy, which the domestic court found to have a legal basis, and the consequences thereof for their intended activities.        Accordingly, the Commission finds that the interference was "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention. The Commission has further already held the aim to be legitimate.        As regards the notion of necessity, the Commission recalls that the phrase "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 the Contracting States 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 by Article 10 para. 1 (Art. 10-1) of the Convention, this supervision must be strict because of the importance of these rights and freedoms. The necessity for any restriction must be convincingly established (cf. Eur. Court H.R., Autronic AG judgment of 22 May 1990, Series A no. 178, p. 26, para. 61; and Otto-Preminger- Institut judgment, loc. cit., p. 19, para. 50).        The Commission notes that the present case does not concern a situation in which an absolute monopoly position was held by a public broadcasting organisation. It concerns the situation in which in the allocation of, per definition, scarce frequencies at a regional level, regional public broadcasting organisations enjoy a priority right of limited duration. Such organisations are provided with the opportunity to decide within a reasonable delay whether they wish to make use of a given frequency. If this is not the case, this frequency can be offered to other interested parties.        The Commission notes that public broadcasting in the Netherlands is governed by the Media Act, which aims at a 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 (see also No. 21472/93, Dec. 11.1.94, D.R. 76 p. 129 at p. 132).        The Commission further notes that the applicants did not wish to relay programmes specifically aimed at the audience in the region of Noord-Holland, but programmes from foreign commercial broadcasting stations primarily aimed at a foreign audience. It has not been argued or appeared that the nature of these foreign programmes is compatible with the aim of pluralism pursued in the Dutch broadcast system and policy.        It is true that the applicants' request for a licence was rejected in a final decision. However, insofar as can be established from the applicants' submissions, this refusal is not definite because the reason for the refusal was that the regional public broadcasting organisation had not yet indicated whether or not it wished to use the frequency at issue. Only when this question has been resolved, within a reasonable time, clarity can be obtained whether or not this frequency can be allocated to another interested party such as the applicants. The applicants have not raised any complaints relating to the duration of that period of reflection granted to regional public broadcasting organisations.        Also taking into account that the applicants' request for a licence was not refused in order to prevent reception of television broadcasts of foreign commercial stations, but on the basis of an established policy as regards the efficient use of airwaves aimed at safeguarding pluralism in the media, the Commission cannot find that granting a priority right, which is only valid for a limited period of time, to regional public broadcasting organisations vis-à-vis persons or private organisations seeking to exploit commercial broadcasts in the field of allocation of regional frequencies is disproportionate.        Insofar as the applicants complain that the priority right at issue constitutes a discriminatory treatment between them on the one hand and regional public broadcasting organisations on the other, which is contrary to Article 14 (Art. 14) of the Convention, the Commission recalls that this provision prohibits different treatment without any objective and reasonable justification of persons in "relevantly" similar situations (cf. No. 23419/94, Dec. 6.9.95, D.R. 82 p. 41).        The Commission notes that the applicants, who sought permission to install and exploit broadcasting equipment in order to receive and relay television programmes of foreign commercial stations, seek to compare their situation with the situation of a regional public broadcasting organisation in the Dutch media system.        The Commission considers that these two situations cannot be regarded as comparable for the purposes of Article 14 (Art. 14) of the Convention.        Even assuming that these two situations could be considered as "relevantly" similar, the Commission, having regard to its above findings under Article 10 (Art. 10) of the Convention, is of the opinion that there are objective and reasonable grounds for the difference in treatment complained of.        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.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that they did not have a fair hearing in the proceedings at issue and under Article 6 para. 1 in conjunction with Article 13 (Art. 6-1+13) of the Convention that they did not have an effective remedy against the refusal of the licence.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, reads:        "In the determination of his civil rights and obligations ...      everyone is entitled to a fair ... hearing ... by a ... tribunal      ..."        Article 13 (Art. 13) of the Convention provides:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        In determining whether Article 6 para. 1 (Art. 6-1) of the Convention has been violated, the Commission must first examine whether the proceedings at issue involved a determination of the applicants' civil rights and obligations within the meaning of this provision.        The Commission recalls that for Article 6 para. 1 (Art. 6-1) of the Convention to be applicable under its "civil" head, there must be a "dispute" over a "right" which can be said, at least on arguable grounds, to be recognised under domestic law. The "dispute" must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. As regards the question whether the dispute relates to a "civil" right it must be determined whether the outcome of the proceedings is directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to make Article 6 para. 1 (Art. 6-1) applicable (cf. Eur. Court H.R., Masson and Van Zon judgment of 28 September 1995, Series A no. 327, para. 44).        The Commission notes that it appears from the Industrial Appeals Tribunal's decision of 5 January 1994 that, as long as competent regional broadcasting organisations have not indicated that they do not wish to make use of the available regional broadcasting facilities which they should do within a reasonable time, other interested parties like the applicants cannot claim a right to such facilities.        It is true that proceedings concerning a licence or an authorisation for conducting professional activities have been found to involve a determination of civil rights within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., König judgment of 28 June 1978, Series A no. 27, pp. 31-32, paras. 91- 95; Benthem judgment of 23 October 1985, Series A no. 97, pp. 14-16, paras. 32-36; Pudas judgment of 27 October 1987, Series A no. 125-A, p. 16, paras. 37-38; and Van de Hurk judgment of 19 April 1994, Series A no. 288, p. 16, para. 43), but there can be no "right" if the existence of that right depends on certain conditions which have not, or not yet, been fulfilled.        Noting that, in the present case, given the absence of a clear position of the competent regional public organisation(s) on the matter it was not yet open for third parties, not being regional public broadcasting organisations, such as the applicants, to seek authorisation to install and exploit the regional broadcast facilities at issue, the Commission finds that the proceedings at issue, at that point in time, did not concern a "right" which could arguably be said to be recognised under Dutch law (cf. Masson and Van Zon judgment, loc. cit., para. 52). Consequently, the proceedings at issue did not, at that point in time, involve a determination of the applicants' civil rights or obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        Insofar as the applicants invoke Article 13 (Art. 13) of the Convention, the Commission recalls that this provision has been interpreted by the Court as requiring a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).        Having regard to its above conclusions in respect of the Convention complaints submitted, the Commission considers that the applicants did not have any "arguable claim" of a violation of the provisions invoked for these complaints. In these circumstances the Commission finds no appearance of a violation or Article 13 (Art. 13) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission           President of the Commission           (H.C. KRÜGER)                          (S. TRECHSEL)