Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 19182/91

Telesystem Tirol Kabeltelevision

against

Austria

REPORT OF THE COMMISSION

(adopted on 18 October 1995)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 5-10) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 11-15). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-30) . . . . . . . . . . . . . . . . . . . . .3

A. The particular circumstances of the case

(paras. 16-22). . . . . . . . . . . . . . . . . . .3

B. Relevant domestic law and practice

(paras. 23-30). . . . . . . . . . . . . . . . . . .4

III. OPINION OF THE COMMISSION

(paras. 31-43) . . . . . . . . . . . . . . . . . . . . .6

A. Complaint declared admissible

(para. 31). . . . . . . . . . . . . . . . . . . . .6

B. Point at issue

(para. 32). . . . . . . . . . . . . . . . . . . . .6

C. Article 10 of the Convention

(paras. 33-42). . . . . . . . . . . . . . . . . . .6

CONCLUSION

(para. 43). . . . . . . . . . . . . . . . . . . . .8

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . .9

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a television company with limited liability,

having its seat at Wörgl in Austria. It was represented before the

Commission by Mrs. E. Berchtold-Ostermann, a lawyer practising in

Vienna.

3. The application is directed against Austria. The respondent

Government were represented by their Agent, Ambassador Mr. F. Cede,

Head of the International Law Department at the Federal Ministry of

Foreign Affairs.

4. The case concerns the applicant company's complaint about the

refusal of authorization to introduce its own programmes into its cable

television net in view of the general broadcasting monopoly in Austria.

The applicant company invokes Article 10 of the Convention.

B. The proceedings

5. The application was introduced on 29 November 1991 and registered

on 10 December 1991.

6. On 7 April 1994 the Commission (First Chamber) decided, pursuant

to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 14 July 1994,

after an extension of the time-limit fixed for this purpose. The

applicant replied on 10 October 1994.

8. On 17 January 1995 the Commission declared the application

admissible.

9. The text of the Commission's decision on admissibility was sent

to the parties on 27 January 1995 and they were invited to submit such

further information or observations on the merits as they wished. The

applicant submitted observations on 7 March 1995.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

MM. C. L. ROZAKIS, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

12. The text of this Report was adopted on 18 October 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

13. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. The Commission's decision on the admissibility of the application

is annexed hereto as Appendix I.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. The applicant company was issued an authorization to establish

a community antenna (Gemeinschaftsantennenanlage) in the area of Wörgl.

As such, the applicant company picked up television programmes which

it transmitted to recipients by means of cable television.

17. On 11 January 1989 the applicant company transmitted to its

clients via cable television information concerning inter alia the

confessional hours of the Wörgl parish; new year's wishes of a Wörgl

business association; the schedule of a ski jumping competition; the

schedule of the play "If I were you, doctor" ("wenn ich Sie wäre, Herr

Doktor") of the local drama group; and the closure of a local ski lift

on account of repairs.

18. On the same day the Tirol and Vorarlberg Regional Postal

Administration (Post- und Telegraphen Direktion für Tirol und

Vorarlberg) informed the applicant company that the broadcasting of

this kind of information was irregular.

19. On 12 January 1989 the applicant company filed a request to

introduce (einspielen) its own programmes into its cable television

net. This request was dismissed on 16 January 1989 by the Regional

Postal Administration on the ground that Section 20 para. 1 of the

Radio Broadcasting Ordinance (Rundfunkverordnung, see below Relevant

domestic law and practice) permitted community antennae only to pick

up programmes and transmit them to clients, not to introduce their own

programmes into the cable network.

20. The applicant company filed an appeal against this decision which

was dismissed on 17 February 1989 by the General Direction of Post and

Telecommunications (Generaldirektion für die Post- und Telegraphenver-

waltung). In its decision the General Direction referred in particular

to the decision of the Constitutional Court of 16 December 1983 (see

below, Relevant domestic law and practice).

21. The applicant company filed a further appeal which was dismissed

by the Constitutional Court (Verfassungsgerichtshof) on

26 November 1990. The Court considered that in the light of its own

decision of 16 December 1983 the appeal offered no prospects of success

and referred the case for decision to the Administrative Court

(Verwaltungsgerichtshof).

22. On 18 September 1991 the Administrative Court dismissed the

appeal. The Court considered that the applicant company, rather than

receiving and transmitting information, creatively prepared programmes

destined for the general public. In the light of the Constitutional

Court's decision of 16 December 1983 the authorization to broadcast

could not therefore be granted.

B. Relevant domestic law and practice

1. Telecommunications Act of 13 July 1949

23. According to Section 2 para. 1 of the Telecommunications Act

(Fernmeldegesetz), "the right to set up and operate telecommunications

installations is vested exclusively in the federal authorities" ("Das

Recht, Fernmeldeanlagen zu errichten und zu betreiben steht

ausschliesslich dem Bunde zu"). Section 3 envisages the authorization

for private persons or institutions to operate broadcasting

installations. Section 5 lists instances where broadcasting

installations may be set up without authorization, e.g. within the

boundaries of a private property.

2. Private Telecommunications Installations Ordinance (1961)

24. The Private Telecommunication Installations Ordinance of 1961

(Verordnung des Bundesministeriums für Verkehr und Elektrizitäts-

wirtschaft über Privatfernmeldeanlagen) concerns all broadcasting

installations which, on the basis of the Telecommunications Act, are

subject to Federal supervision (Section 1). The Ordinance states inter

alia the conditions for the setting up and operation of private

broadcasting installations. However, according to the decisions of the

Austrian courts and administrative authorities, these provisions cannot

constitute the basis for granting licences to private applicants.

3. Constitutional Broadcasting Act of 10 July 1974

25. Section 1 of the Constitutional Broadcasting Act (Bundesverfas-

sungsgesetz über die Sicherung der Unabhängigkeit des Rundfunks)

states:

"(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

26. Section 20 para. 1 of the Radio Broadcasting Ordinance (Rundfunk-

verordnung) provides that the radio signals received must be

transmitted immediately, completely and unaltered to the recipients.

27. According to S. 24 a of the Radio Broadcasting Ordinance, in the

version of the amendment which entered into force on 31 July 1993,

Federal Law Gazette (Bundesgesetzblatt) No. 507/1993, holders of an

authorization to operate a community antenna may, without any special

permit, disseminate cable text, using their own installations

(paragraph 1). Cable text includes services designed to impart

information to the inhabitants of a community or region by means of

written or graphical signs and symbols as well as by text screens

provided as an additional service to subscribers (via a separate

channel and using the vertical interval of the TV signal)

(paragraph 2).

5. Broadcasting Corporation Act of 1974

28. The Broadcasting Corporation Act (Bundesgesetz über die Aufgaben

und die Einrichtung des Österreichischen Rundfunks) sets up the

Austrian Broadcasting Corporation as an economic unit with legal

personality entrusted with the function of supplying the public with

broadcasts. These broadcasts must comply with certain criteria, for

instance with regard to the number and quality of programmes. The

programmes must inform the public comprehensively of all important

political, economic, cultural and sports events by objective selection

and dissemination of news and reports.

6. Constitutional Court's decision of 16 December 1983

(No. 9909/1983)

29. The Constitutional Court's decision of 16 December 1983 concerned

programmes introduced into an internal cable television system. The

Court found inter alia that the aim of the Austrian Constitutional

Broadcasting Act was to introduce a licensing requirement within the

meaning of Article 10, para. 1, last sentence. This aim could not be

achieved if, in the absence of legislation, everybody was entitled

freely to broadcast. So far, a law had only been enacted for the

Austrian Broadcasting Corporation. It followed that only the latter

could operate broadcasting.

30. According to the Constitutional Court's decision, broadcasting

included active cable broadcasting which therefore fell within the

scope of the Constitutional Broadcasting Act and its implementing

legislation. Under the Telecommunications Act and the Ordinance on

Private Telecommunication Installations the telecommunications

authorities were competent to grant broadcasting licences. An

authorization for the setting up and operation of broadcasting

installations could not be granted by the authorities before a federal

law on the subject had been enacted.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

31. The Commission has declared admissible the applicant company's

complaint that it was not permitted under Austrian law to broadcast its

own programmes, with a view to the general broadcasting monopoly of the

Austrian Broadcasting Corporation.

B. Point at issue

32. Accordingly, the issue to be determined is whether there has been

a violation of Article 10 (Art. 10) of the Convention.

C. Article 10 (Art. 10) of the Convention

33. Article 10 (Art. 10) of the Convention provides as follows:

"1. Everyone has the right to freedom of expression. This

right shall include freedom to hold opinions and to receive and

impart information and ideas without interference by public

authority and regardless of frontiers. This Article shall not

prevent States from requiring the licensing of broadcasting,

television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

34. The applicant company submits that the decisions by the Austrian

authorities, prohibiting it to broadcast its programmes, which mainly

contained information on local events, violated its freedom to impart

information. Austrian law failed to provide a licensing system for

private broadcasters and, thus, led to a broadcasting monopoly of the

Austrian Broadcasting Corporation. In addition, the applicant company

submits that the amendment of the Radio Broadcasting Ordinance, which

entered into force on 31 July 1993, has not fundamentally changed the

situation. S. 24 a of the said Ordinance allows operators of community

antenna to disseminate cable text. However, they are still prohibited

from broadcasting films, cable text accompanied by spoken comments or

commercial advertising.

35. The Government have not made submissions on the merits of the

complaint.

36. The Commission finds that the prohibition complained of

constitutes an interference with the applicant company's right to

impart information. However, the Commission recalls that the third

sentence of Article 10 para. 1 (Art. 10-1) permits Contracting States

to regulate by a licensing system the way in which broadcasting is

organised in their territories. This may lead to interferences whose

aims will be legitimate under this sentence, even though they do not

correspond to any of the aims set out in paragraph 2. (Eur. Court H.R.,

Groppera Radio AG and Others judgment of 28 March 1990, Series A no.

173, p. 24, para. 61; Informationsverein Lentia and Others judgment of

24 November 1993, Series A no. 276, p. 14-15, paras. 32-33).

37. The Commission finds that the present case raises issues very

similar to those, the Court dealt with in the case of Informations-

verein Lentia. In that case, the Court found that the monopoly system

operated in Austria is capable of contributing to the quality and

balance of programmes and is consistent with the third sentence of

paragraph 1 (Informationsverein Lentia and Others judgment, loc. cit.).

38. However, the interference complained of must also satisfy the

requirements set out in paragraph 2 of Article 10 (Art. 10-2)

(Informationsverein Lentia and Others judgment, loc. cit.).

39. In the present case the interference was prescribed by law,

namely by the Radio Broadcasting Ordinance, as well as by the

Constitutional Broadcasting Act in conjunction with the Broadcasting

Corporation Act. Further, it served the legitimate aim set out above.

40. As regards the notion of necessity, the Commission recalls that

the Contracting States, in assessing the need for an interference,

enjoy a margin of appreciation, but this goes hand in hand with

European supervision. In cases, where there has been an interference

with the rights and freedoms guaranteed in paragraph 1 of Article 10

(Art. 10-1), the supervision must be strict because of the importance

of the rights in question (Informationsverein Lentia and Others

judgment, loc. cit., p. 15, para. 35).

41. The Commission considers that arguments similar to those which,

in the case of Informationsverein Lentia, led the Court to find that

the interferences flowing from the Austrian Broadcasting monopoly were

not necessary in a democratic society, can be adduced in the present

case (Informationsverein Lentia and Others judgment, loc. cit.,

p. 16-17, paras. 38-43). In particular, the programmes, which the

applicant company was prohibited from broadcasting, were aimed at the

needs of the local population, which cannot be taken into account by

the Austrian Broadcasting Corporation, whose programmes are designed

for the national or the regional level. However, Austrian law

applicable at the relevant time, led to a total impossibility for

private stations to introduce their own programmes, irrespective of

their nature and objective and the audience addressed. Further, the

authorities could not issue authorizations to broadcast subject to

specified conditions or allow private participation in the activities

of the national corporation. The amendment to the Radio Broadcasting

Ordinance, which entered into force on 31 July 1993, was limited to the

dissemination of cable text and did not, therefore, substantially alter

the situation.

42. In these circumstances, the Commission finds that the

interference complained of was disproportionate and, therefore, not

necessary in a democratic society within the meaning of Article 10

para. 2 (Art. 10-2).

CONCLUSION

43. The Commission concludes, unanimously, that in the present case

there has been a violation of Article 10 (Art. 10) of the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA

TELESYSTEM TIROL KABELTELEVISION v. AUSTRIA

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