CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.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. 27388/95                       by Nicola GRAUSO                       against Poland         The European Commission of Human Rights (Second Chamber) sitting in private on 9 April 1997, the following members being present:                Mrs.   G.H. THUNE, President            MM.    J.-C. GEUS                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA              Ms.    M.-T. SCHOEPFER, 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 22 March 1995 by Nicola GRAUSO against Poland and registered on 23 May 1995 under file No. 27388/95;         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 applicant, an Italian citizen born in 1949, is a businessman and resides in Cagliari, in Italy.   Before the Commission he is represented by Mr R. Smoktunowicz, a lawyer practising in Warsaw.         The facts of the case, as submitted by the applicant, may be summarised as follows:   Particular circumstances of the case         In 1991 the applicant set up a Polish-Italian joint-venture television broadcasting company in Poland.         In the meantime, as a new law on television broadcasting was due to be passed by the Polish Parliament, the applicant's company commenced broadcasting its programme without any licence.         On 29 December 1992 the Polish Parliament passed the new Law on Radio and Television Broadcasting (see Relevant domestic law).         On 2 June 1993 the National Council of Radio and Television Broadcasting (Krajowa Rada Radiofonii i Telewizji), in accordance with the above-mentioned new Law of 29 December 1992, issued an ordinance which established, inter alia, the requirements for applications for obtaining a broadcasting licence and rules of procedure in respect of the granting and withdrawal of broadcasting licences.         On 28 June 1993 the President of the National Council of Radio and Television Broadcasting   announced in the press that the process of granting licences for national, regional and local radio and television broadcasting had commenced.   This process was based on the provisions of the Law on Radio and Television Broadcasting of 29 December 1992 and the Code of Administrative Procedure.   The Council indicated that in the first stage of the procedure priority would be given to applications for licences to broadcast national television programmes by means of high-power transmitters.   The Council also stated that it was making efforts to obtain a larger number of frequencies and channels, and that the possibility of supplementing the list of available frequencies was not excluded.   The announcement in question contained a list of currently available frequencies and television channels for low-power and high-power transmitting stations as well as the locations of the respective stations.         On an unspecified date, the applicant's Polish-Italian joint- venture broadcasting company applied for the licence for local television broadcasting by means of low-power transmitters.         On 22 October 1993   the National Council of Radio and Television Broadcasting announced in the press a list of applicants seeking the licence for broadcasting by means of low-power transmitters.         On 24 November 1993 a deed of association was concluded between eighteen broadcasting companies.   Among them were companies in which the applicant was the principal shareholder.   They established a new joint-stock broadcasting company, i.e. Polish Private Television S.A.         On 30 November 1993 Polish Private Television S.A. applied for a licence for national television broadcasting by means of high-power transmitters.         On 15, 16 and 17 January 1994 the National Council of Radio and Television Broadcasting examined applications for national television broadcasting licences.   The applicants presented their applications in public.   They were also entitled to make oral submissions and supplement their applications.         On 11 February 1994 the National Council of Radio and Television Broadcasting issued a resolution which was published in the press.   The resolution indicated that, following the examination of all applications, it was intended to grant the national television broadcasting licence to Polish Satellite Television "Polsat" since this company offered the best technical and programme conditions required for a national television broadcasting.   The Council indicated that, due to the limited number of high-power television channels, certain low-power-operated channels were to be temporarily granted for the use of this company.         On 1 March 1994 the President of the National Council of Radio and Television Broadcasting granted the licence for national television broadcasting to Polish Satellite Television "Polsat".   The decision was based on, in particular, sections 33 and 35 of the Law of 29 December 1992 on Radio and Television Broadcasting.   According to para. XXV of the decision, Polish Private Television S.A. was, along with the eight other applicants, refused the licence.   In his grounds for refusal, the President referred in particular to the fact that a considerable number of companies in the group Polish Private Television S.A. had previously broadcast their programmes without any licence.         On 7 March 1994 the Polish Private Television S.A. and other companies lodged a complaint against the above decision with the Supreme Administrative Court (Naczelny S*d Administracyjny).   The complaint contested the lawfulness of the decision in question and alleged errors of law.   It also contained submissions contesting the fact that certain low-power television channels had been granted to Polish Satellite Television "Polsat", which, in the complainants' view, made it impossible to obtain a further licence for local broadcasting by means of low-power transmitters.         On 5 August 1994 the Supreme Administrative Court, on the complainants' request, decided to stay the enforcement of the decision of 1 March 1994 until the date of the final judgment.         On 22 September 1994 the Supreme Administrative Court annulled para. XIII of the contested decision (concerning the granting of the licence with respect to certain high-power television channels which were not yet available) and upheld the remainder of the decision.   The court held that a decision to grant a broadcasting licence had a discretionary character although the organ issuing such a decision had to comply with the criteria set out in the Law of 29 December 1992 on Radio and Television Broadcasting.   The court did not find a violation of the provisions of the relevant Law.   Also, the court stressed that the whole licensing process was fundamentally affected by the limited number and category of frequencies and channels, which the Minister of Communication was gradually transferring into the hands of the National Council of Radio and Television Broadcasting. Finally, the court found that as the process of transferring channels and frequencies was pending, the complainants had not lost the possibility of applying for a broadcasting licence in the future.         On an unspecified date the police seized certain movables (apparently, the transmitters and other broadcasting devices) belonging to the applicant's   companies.   Relevant domestic law and practice         The Law of 29 December 1992 on Radio and Television Broadcasting was the first legal instrument to set up the rules of granting broadcasting licences for private companies.   Until this date, the existing public radio and television had an absolute monopoly in the broadcasting sector.         Section 33 of the Law provides:         "1.   Radio and television broadcasting, except by public radio       and television, shall be subject to obtaining a licence.         2.    The President of the National Council of Radio and       Television Broadcasting shall be competent to grant a       broadcasting licence.         3.    The President shall grant the licence on the basis of a       resolution of the Council.   His decision shall be final."         Section 35, insofar as relevant, provides:         "1.   A licence may be granted in favour of an individual who is       a Polish citizen and who permanently resides in Poland.   It may       also be granted in favour of a legal person having its registered       office in Poland.         2.    A licence may be granted in favour of a company of which one       or more of the members is a foreign national, provided that:         (1) Not more than 33% of the whole capital of the company is put       up by a foreign national or by foreign nationals."         At the time of the enactment of the Law of 29 December 1992 the National Council of Radio and Television Broadcasting had at its disposal a limited number and category of frequencies which could potentially be used for broadcasting.   The frequencies and channels were gradually transferred by the Minister of Communications for the purposes of broadcasting by private companies.   This process is still continuing.     COMPLAINTS   1.     The applicant complains under Article 10 of the Convention that the refusal to grant a broadcasting licence to his companies violated his right to impart information and ideas and his right to conduct broadcasting.   2.     Under Article 11 of the Convention the applicant complains that the Polish authorities violated his right of free association with others as the refusal to grant the broadcasting licence prevented his companies from grouping their broadcasting stations in a network.   3.     He further complains under Article 14 of the Convention that, in the course of the licence-granting process, he was discriminated against on the ground of his Italian nationality, as Polish law provides that a foreign person cannot hold more than 33% of the shares in a radio or television broadcasting company.   4.     The applicant also complains under Article 6 of the Convention that the Supreme Administrative Court failed to examine many of his arguments raised in his complaint against the unfavourable decision on the broadcasting licence.   5.     Finally, the applicant complains under Article 1 of Protocol No. 1 to the Convention that certain possessions belonging to his companies were seized by the Polish authorities following the refusal to grant a broadcasting licence.     THE LAW   1.     The applicant complains that the refusal to grant a broadcasting licence to his companies violated his right to freedom to impart information and ideas and his right to conduct broadcasting.         Article 10 (Art. 10) of the Convention provides:         "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 interest of       national security, territorial integrity or public safety, for       the prevention of disorder and crime, for the protection of       health and 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 Commission recalls that the right to freedom of expression guaranteed in Article 10 (Art. 10) includes among other things the freedom to impart information and ideas through broadcasting (see, inter alia, No. 10746/84, Dec. 16.10.86, D.R. 49, p. 139).   It also notes that the applicant does not complain about the existence in Poland of a licensing system per se, whereby, according to the Convention organs' case-law, the States are permitted to regulate the way in which   broadcasting is organised in their territories, particularly in its technical aspects (see Eur. Court HR, Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, p. 14, para. 32).         However, even though States are permitted to apply licensing measures under Article 10 para. 1 (Art. 10-1), third sentence, the refusal to grant a broadcasting licence may, as in the present case, amount to an interference with the freedom of expression.   Such interference is in breach of Article 10 (Art. 10), unless it is justified under paragraph 2 of Article 10 (Art. 10-2), i.e. it is "prescribed by law", has an aim or aims which is or are legitimate and is "necessary in a democratic society".         The Commission observes that the decision as to which of a number of competing companies would be granted a broadcasting licence was based on sections 33 and 35 of the Law of 29 December 1992 on Radio and Television Broadcasting.   The measure applied was therefore "prescribed by law" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.         Furthermore, given the continuing limitation on the number of frequencies and channels available, the measure served "the prevention of disorder", which is a legitimate aim under Article 10 para. 2 (Art. 10-2) of the Convention.         It remains to be examined whether the interference at issue was "necessary in a democratic society" within the meaning of Article 10 para. 2 (Art. 10-2) of the Convention.   The Commission recalls that this term implies that the interference must correspond to a "pressing social need" and be proportionate to the legitimate aim pursued.   Also, in determining whether an interference is "necessary in a democratic society" the Convention organs must take into account that a margin of appreciation is left to the Contracting States (see Eur. Court HR, Groppera Radio AG and Others v. Switzerland judgment of 28 March 1990, Series A no. 173, p. 28, para. 72 and Markt Intern Verlag GmbH and Klaus Beermann v. Germany judgment of 20 November 1989, Series A no. 165, pp. 19 et seq., para. 33).         In the present case, the Commission notes that, on the one hand, the authorities were faced with the limited number of frequencies and channels available at the material time and were obliged to choose between different broadcasting enterprises.   On the other hand, when deciding to attribute the broadcasting licence to another company, they considered that this company offered the best technical and programme conditions required for a national private television broadcasting. As a result, the applicant did not obtain the licence in question, at least for a certain period of time.         The Commission finds that the authorities in their decisions carefully balanced the competing interests at stake.   If, in consequence, they did not grant the applicant a broadcasting licence for the time being, it cannot be said that their assessment went beyond the margin of appreciation left to national authorities in such matters (see Informationsverein Lentia and Others v. Austria judgment loc. cit.).         It follows that the interference in question was justified under Article 10 para. 2 (Art. 10-2) of the Convention as it could be considered as "necessary in a democratic society ... for the prevention of disorder" within the meaning of this provision.         This part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains under Article 11 (Art. 11) of the Convention that the Polish authorities violated his right to freedom of association with others because the refusal to grant the broadcasting licence prevented his broadcasting stations from grouping in a network.   Under Article 14 (Art. 14) of the Convention he complains that in the course of the licensing process he was discriminated against on the ground of his nationality.   However, the Commission observes that these complaints do not raise any separate issue under the Convention.         It follows that this part of application is also manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3.     The applicant also complains under Article 6 (Art. 6) of the Convention that the Supreme Administrative Court failed to examine many of his arguments raised in his complaint against the unfavourable decision on the broadcasting licence.         Article 6 (Art. 6) of the Convention, insofar as relevant, provides:         "1.   In the determination of his civil rights and obligations       ... everyone is entitled to a fair and public hearing within a       reasonable time by an independent and impartial tribunal       established by law. ...   "         The Commission recalls that, according to the principles established in the Convention organs' case-law, Article 6 para. 1 (Art. 6-1) of the Convention applies only to disputes 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; and finally, the result of the proceedings must be directly decisive for the right in question (see Eur. Court HR, Zander v. Sweden judgment of 25 November 1993, Series A no. 279, p. 38, para. 22).         In the present case the applicant could not, even on arguable grounds, claim under Polish law to have a right to obtain a broadcasting licence.   As a result, the proceedings in question did not involve a determination of the applicant's "civil rights and obligations" falling within the scope of Article 6 (Art. 6) of the Convention.   This provision is not, therefore, applicable in the present case.         It follows that this part of application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   4.     Insofar as the applicant complains under Article 1 of Protocol No. 1 (P1-1) to the Convention that certain possessions belonging to his companies were seized by the Polish authorities following the refusal to grant the broadcasting licence, the Commission observes that the applicant failed to sufficiently substantiate this complaint.         It follows that the remainder of the application is 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.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber