Lexploria

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:

"(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."

"(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)

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RADIO ABC v. AUSTRIA

RADIO ABC v. AUSTRIA

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