Lexploria

Application No. 26079/94

by CDI HOLDING AG

against the Slovak Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 October 1996, 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

L. LOUCAIDES

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 June 1994 by

CDI HOLDING AG against the Slovak Republic and registered on

21 December 1994 under file No. 26079/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 28 February 1996 to communicate the

application;

- the applicant company's request of 29 July 1996 to withdraw the

case.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a limited company with its registered office in

Vienna. In June 1993 it merged with D. Ltd and became the successor

of the latter. Before the Commission the applicant company is

represented by Mr. Klaus Maleschitz, a lawyer practising in Vienna.

The facts of the case, as submitted by the applicant company, may

be summarised as follows.

On 14 December 1989 D. Ltd concluded a contract with the then

Czechoslovak Radio. Under the contract, D. Ltd was entitled to

broadcast in German under the name "Radio CD International" on the

frequency of 101,8 MHz which was assigned to the Czechoslovak Radio.

The technical prerequisites for the broadcasting covering an area of

75 kilometres around Bratislava, i.e. also the area of Vienna, were to

be provided by the Czechoslovak Radio. The contract was concluded for

a period up to 31 December 1994 and could be extended until the end of

1997. On 12 December 1991 a subsidiary of D. Ltd in Slovakia concluded

a contract with the Administration of Radiocommunications (Správa

rádiokomunikácií) concerning the hire purchase of a FM transmitter and

of an antenna. Unless it lost the right to use the frequency of 101,8

MHz, the Administration of Radiocommunications undertook to transmit

"Radio CD International" by means of this equipment for eight years.

Possible disputes were to be settled pursuant to Czechoslovak law.

On 23 December 1992 D. Ltd concluded a contract with the Slovak

Radio, the successor of the Czechoslovak Radio in Slovakia, by which

several provisions of the original contract of 1989 were amended. The

renewed contract was concluded for the period up to the end of 1997,

and D. Ltd had an irrevocable right to an extension until the end of

2000. The Slovak Radio undertook to broadcast the applicant company's

programmes on another frequency of corresponding quality if, as a

result of national or international events, they could not be

transmitted on 101,8 MHz. Unless the liability of D. Ltd was involved,

its possible loss resulting from interruption of the broadcasting was

to be covered by the Slovak Radio.

Possible disputes were to be decided by an arbitration court in

Munich pursuant to the Rules of Procedure of the Arbitration Court of

the International Chamber of Commerce in Paris. The parties agreed

that the substantive law of the Czech and Slovak Federal Republic and,

after 1 January 1993, Slovak law was applicable. Proceedings before

the ordinary courts were excluded.

On 24 September 1993 the Telecommunications Office

(Telekomunikacny úrad) requested the Slovak Telecommunications

(Slovenské telekomunikácie) to eliminate technical shortcomings in

broadcasts on 101,8 MHz. Since it was allegedly impossible to

eliminate the shortcomings, the Slovak Telecommunications had to

interrupt transmissions on 101,8 MHz on 30 September 1993.

On 12 October 1993, following intervention by the Ministry of

Transport, Telecommunications and Public Works, the Telecommunications

Office delivered a provisional permit to transmit on 101,8 MHz until

the end of 1993.

The applicant company learned that the frequency of 101,8 MHz

would be withdrawn from the Slovak Radio and be transferred into

private ownership. The applicant company's subsidiary in Slovakia

tried to obtain a private radio broadcasting licence but was not

successful.

On 20 December 1993 the applicant company asked the Slovak Radio

to arrange for its programmes to be broadcast on another suitable

frequency after 1 January 1994.

On 1 January 1994 the Slovak Telecommunications interrupted the

applicant company's broadcasts. On 11 February 1994 the applicant

company was informed that following the expiry of the provisional

permit of 12 October 1993 the Slovak Telecommunications were no longer

entitled to transmit on 101,8 MHz. As this was a relevant condition

under the contract of 12 December 1991, the Slovak Telecommunications

did not consider themselves bound by that contract.

On 11 February 1994 the applicant company's lawyer informed the

director of the Slovak Telecommunications that another company had

announced that it would broadcast on 101,8 MHz as from 14 February

1994. The applicant company intended to take appropriate legal actions

on both national and international level if such broadcasts began.

The applicant company's broadcasts were resumed on 15 July 1994

on 96,6 MHz and were due to be terminated on 31 December 1995.

At the end of December 1995 the applicant company reached an

agreement with the Slovak Radio and its programmes have continued to

be broadcast.

COMPLAINTS

The applicant company alleged a violation of Article 10 of the

Convention in that on 1 January 1994 the competent Slovak authorities

interrupted its broadcasts. It considered that this interference was

not compatible with the requirements laid down in Article 10 para. 2

of the Convention.

The applicant company further alleged a violation of Article 6

para. 1 of the Convention in that it had had no fair hearing before the

broadcasting was interrupted, and in that the authorities which took

the relevant decision and subsequently interrupted the broadcasting

were neither impartial nor independent.

Finally, the applicant company complained under Article 1 of

Protocol No. 1 that because of the interruption of the broadcasting it

suffered damage amounting to 50 million Austrian schillings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 June 1994 and registered on

21 December 1994.

On 28 February 1996 the Commission decided to communicate the

application to the respondent Government.

On 6 May 1996 the President of the Second Chamber granted an

extension, until 3 July 1996, of the time-limit for the submission of

the respondent Government's observations.

By letters of 1 and 3 July 1996 respectively the manager of the

applicant company and the Agent of the respondent Government informed

the Commission that a settlement of the case on domestic level was

envisaged.

On 4 July 1996 the President of the Second Chamber granted a

further extension, until 3 August 1996, of the time-limit fixed for the

submission of the respondent Government's observations.

By letter dated 29 July 1996 the manager of the applicant company

informed the Commission that the relations between the applicant

company and the Slovak Radio were settled by an agreement. He further

informed the Commission of the applicant company's intention to

withdraw its application.

REASONS FOR THE DECISION

In view of the declaration by the manager of the applicant

company that the latter wishes to withdraw its application registered

under file No. 26079/94, the Commission notes that the applicant

company no longer intends to pursue its petition within the meaning of

Article 30 para. 1 (a) of the Convention.

The Commission finds no special circumstances regarding respect

for human rights as defined in the Convention which require examination

of the application to be continued, in accordance with Article 30 para.

1 in fine of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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CDI HOLDING AG v. THE SLOVAK REPUBLIC

CDI HOLDING AG v. THE SLOVAK REPUBLIC

LEXI