CEDH · CASELAW;REPORTS;ENG — 11 avril 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 }                  EUROPEAN COMMISSION OF HUMAN RIGHTS                            FIRST CHAMBER                      Application No. 19736/92                                Radio ABC                                 against                                 Austria                        REPORT OF THE COMMISSION                     (adopted on 11 April 1996)                            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. 16-31) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 16-21). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 22-31). . . . . . . . . . . . . . . . . . .4     III. OPINION OF THE COMMISSION      (paras. 32-43) . . . . . . . . . . . . . . . . . . . . .6        A.    Complaint declared admissible           (para. 32). . . . . . . . . . . . . . . . . . . . .6        B.    Point at issue           (para. 33). . . . . . . . . . . . . . . . . . . . .6        C.    Article 10 of the Convention           (paras. 34-42). . . . . . . . . . . . . . . . . . .6             CONCLUSION           (para. 43). . . . . . . . . . . . . . . . . . . . .7   APPENDIX I:     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . .8     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 non-profit making association with seat in Vienna. It was represented before the Commission by Mr. H. Wille, 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 association's complaint about the refusal of permission to establish and operate a radio station in the area of Vienna in view of the general broadcasting monopoly in Austria. The applicant association invokes Article 10 of the Convention.     B.    The proceedings   5.    The application was introduced on 30 December 1991 and registered on 23 March 1992.   6.    On 17 January 1995 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 24 March 1995. The applicant replied on 16 May 1995.   8.    On 18 October 1995 the Commission declared the application admissible.   9.    The text of the Commission's decision on admissibility was sent to the parties on 26 October 1995 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted observations on 6 November 1995. The Government submitted observations on 15 December 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:             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                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL   12.   The text of this Report was adopted on 11 April 1996 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.   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.        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.   17.   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.   18.   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.   19.   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.   20.   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.   21.   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. On 27 September 1995 the Constitutional Court set aside parts of S. 2 of the Regional Radio Act and quashed the frequency utilisation plan, which had been based on it (see below, Relevant domestic law and practice).     B.    Relevant domestic law and practice   1.    Telecommunications Act of 13 July 1949   22.   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)   23.   The Ordinance on Private Telecommunication Installations 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   24.   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   25.   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.   5.    Broadcasting Corporation Act of 1974   26.   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)   27.   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.   28.   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   29.   The Regional Radio Act (Regionalradiogesetz), which entered into force on 1 January 1994, concerns licensing requirements for private local and regional radio broadcasters.   30.   According to S. 2 of this Act the Federal Minister for Public Economy and Transport, by an ordinance, has to establish a frequency utilisation 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.   31.   The Constitutional Court, in its decision of 27 September 1995 set aside parts of S. 2 as being unconstitutional and accordingly quashed the frequency utilisation plan which had been based on it.     III. OPINION OF THE COMMISSION   A.    Complaint declared admissible   32.   The Commission has declared admissible the applicant association's complaint about the refusal of permission to establish and operate a radio station in the area of Vienna in view of the general broadcasting monopoly in Austria.     B.    Point at issue   33.   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   34.   Article 10 (Art. 10) of the Convention provides a 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."   35.   The parties have not made submissions on the merits of the complaint.   36.   The Commission finds that the refusal to set up and operate a regional radio station in view of the general broadcasting monopoly in Austria, constitutes an interference with the applicant association'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 Informationsverein 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 Article 10 para. 1 (Art. 10-1) (Informationsverein Lentia and Others judgment, loc. cit.).   38.   However, the interference complained of must also satisfy the other 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 the Constitutional Broadcasting Act of 1974 in conjunction with the Broadcasting Corporation Act.   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 margin 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). The applicant association requested authorization to set up and operate a radio station for the area of Vienna. However, Austrian law applicable at the relevant time, led to a total impossibility for private stations to operate their own programmes, irrespective of their nature and objective and the audience addressed. The authorities could neither issue authorisations for private broadcasters nor could they allow private participation in the activities of the national corporation. The Commission notes that meanwhile the Austrian legislator has adopted the Regional Radio Act, which created licensing requirements for private local and regional radio broadcasters. However, the Constitutional Court's decision of 27 September 1995 set aside one provision of this act and the frequency utilisation plan which was based on it. Thus, the applicant association's situation has not substantially changed.   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)