AS TO THE ADMISSIBILITY OF

                      Application No. 26907/95

                      by Karl-Christian KRETZSCHMAR

                      against Germany

     The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

           Mr.   C.L. ROZAKIS, President

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 M.P. PELLONPÄÄ

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 E. KONSTANTINOV

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

           Mrs.  M.F. BUQUICCHIO, 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 6 December 1994

by Karl-Christian KRETZSCHMAR against Germany and registered on

29 March 1995 under file No. 26907/95;

     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 facts of the case, as they have been presented by the

applicant, may be summarised as follows.

     The applicant is a German national and resident in Hanover.  He

is a practising lawyer and notary by profession.

     On 1 August 1987  the applicant subscribed to the "Norddeutscher

Rundfunk", a German public broadcasting corporation with the status of

an autonomous public-law corporation, and has since been paying a

quarterly fee of DM 18 in respect of the radio in his car, which is

used for professional purposes.

      In November 1991 the applicant instituted proceedings before the

Hamburg Administrative Court (Verwaltungsgericht) against the

"Norddeutscher Rundfunk", claiming payment of DM 144 and interest as

refund of the wireless licence fees paid in 1991, and further a

declaratory judgment to the effect that he was not obliged to pay radio

licence fees.  He submitted that the levying of wireless licence fees

amounted to a restriction of his right to receive information and

violated Article 10 of the Convention.  Moreover, he mainly used the

radio in his car to receive traffic news and otherwise only listened

to private radio stations.

     On 25 June 1992 the Hamburg Administrative Court dismissed the

applicant's action.  The Administrative Court found that the applicant

was obliged to pay wireless licence fees, pursuant to the relevant

provisions of the Broadcasting (Finance) Treaties (Rundfunkgebühren-

staatsvertrag/Rundfunkfinanzierungsstaatsvertrag).

     As regards the applicant's argument that the fee was unlawful on

the ground that, except for the traffic news, he only listened to

private radio stations, the Administrative Court observed that traffic

news were mainly broadcast by public broadcasting corporations.  In any

event, the wireless licence fee was not only levied from persons

listening to programmes broadcast by public broadcasting corporations.

In this respect, the Court considered that the wireless licence fee was

levied in respect of the facility to receive broadcasting programmes,

irrespective of the question whether and to what extent subscribers in

fact listened to their radios.  The current technical facilities

required the wireless licence fees to be determined as flat rates, and

the facility to receive broadcasting programmes constituted as such an

advantage justifying a fee.

     Moreover, the system of wireless licence fees could not be

objected to under the freedom of expression, as guaranteed under the

Basic Law (Grundgesetz).  The Administrative Court, referring to the

case-law of the Federal Constitutional Court (Bundesverfassungs-

gericht), recalled that, in the dual - public and private - system of

broadcasting in Germany, the public broadcasting ensured the 'basic

supply' ('Grundversorgung') with programmes fully covering the variety

of ideas and opinions, which was necessary in a democratic society.

The wireless licence fees were a means to finance broadcasting and did

not amount to an interference with the right to receive information.

In particular the right to receive informations could not be understood

as a right to receive information free of charge.  The Administrative

Court found that the same considerations applied to the applicant's

arguments under Article 10 of the Convention.

     On 28 December 1993 the Hamburg Administrative Court of Appeal

(Oberverwaltungsgericht) dismissed the applicant's appeal.  The

Administrative Court of Appeal confirmed the findings and reasoning of

the Administrative Court.  As regards the applicant's submission that

he did not intend to challenge the broadcasting system and the wireless

radio fees in general, but only to the extent that the fee was levied

from persons solely listening to private stations, the Administrative

Court of Appeal noted that the applicant, according to his own

statements, was listening to traffic news which were also broadcast by

public broadcasting corporations.

     On 20 May 1994 the Federal Administrative Court (Bundes-

verwaltungsgericht) dismissed the applicant's request for leave to

appeal.  The applicant received the decision on 10 June 1994.

     Meanwhile, on 22 February 1994 the Federal Constitutional Court,

in proceedings for a decision on the compatibility of statutory law

with the Basic Law referred to it by the Bavarian Administrative Court

of Appeal, rendered a judgment on constitutional questions relating to

wireless licence fees.  The Federal Constitutional Court found inter

alia that the freedom of reporting by means of broadcasts

(Rundfunkfreiheit) required that broadcasting was not subjected to any

undue influences by the State or any groups in society, but reflected

the variety of subjects and opinions prevailing in society.  In the

dual system of public and private broadcasting, the rules on the

financing of public broadcasting had to ensure that it could fulfil its

functions in forming public opinion, in the entertainment and

information of the general public, including its responsibilities in

cultural matters.  The appropriate means to finance public broadcasting

was the levying of fees, which enabled it to offer a comprehensive

programme independent of shares of audience and the placement of

commercials.  The deficits of private broadcasting in the choice of

subjects could only be accepted as long as the public broadcasting

remained fully operable.  It was therefore justified to levy wireless

licence fees from all subscribers, i.e. all persons having a radio at

their disposal, irrespective of their habits in using it.

COMPLAINTS

     The applicant complains that the levying of the wireless licence

fees amounts to a violation of this right to freedom of expression

under Article 10 of the Convention.  He submits that he only receives

programmes from private stations.

     As regards the conditions under Article 26 of the Convention, the

applicant submits that, having regard to the Federal Constitutional

Court judgment of 22 February 1994, he could not be expected to lodge

a constitutional complaint with the Federal Constitutional Court.

THE LAW

     The applicant complains that the levying of the wireless licence

fees amounts to a violation of his right to freedom of expression under

Article 10 (Art. 10) of the Convention.

     Article 10 (Art. 10) 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."

     The Commission notes that the applicant, in respect of the radio

in his car used for professional purposes, subscribed to a public

broadcasting corporation and that wireless licence fees are levied from

him on a quarterly basis.

     In the administrative court proceedings brought by the applicant,

the Hamburg Administrative Court, as confirmed by the Hamburg

Administrative Court of Appeal, found that the applicant was obliged

to pay wireless licence fees, pursuant to the relevant provisions of

the Broadcasting (Finance) Treaties.  The fee in question was levied

in respect of the facility to receive broadcasting programmes,

irrespective of the question whether and to what extent subscribers in

fact listened to their radios.  In the dual - public and private -

system of broadcasting in Germany, public broadcasting ensured the

'basic supply' ('Grundversorgung') with programmes fully covering the

variety of ideas and opinions, which was necessary in a democratic

society.  The wireless licence fees were a means to finance

broadcasting and did not amount to an interference with the right to

receive information which could not be understood as a right to receive

information free of charge.

     Moreover, the Federal Constitutional Court, in its judgment of

22 February 1994 rendered in another set of proceedings, found that the

rules on the financing of public broadcasting had to ensure that it

could fulfil its functions in forming public opinion, in the

entertainment and information of the general public, including its

responsibilities in cultural matters.  The appropriate means to finance

public broadcasting was the levying of fees, which enabled it to offer

a programme independent of shares of audience and the placement of

commercials.  The deficits of private broadcasting in the choice of

subjects could only be accepted as long as the public broadcasting

remained fully operable.  It was therefore justified to levy wireless

licence fees from all subscribers, i.e. all persons having a radio at

their disposal, irrespective of their habits in using it.

     The Commission considers that under the relevant German

legislation the right to receive information by means of broadcasting

is subject to the condition of subscribing to one of the public

broadcasting corporations and the payment of a wireless licence fee.

Assuming that this system of financing public broadcasting amounts to

an interference with the exercise of the freedom to receive

information, as guaranteed under Article 10 para. 1 (Art. 10-1), the

Commission finds that such interference was justified under paragraph

2 of Article 10 (Art. 10-2) for the following reasons.

     The Commission finds that the levying of wireless licence fees,

based on the relevant provisions of the Broadcasting (Finance)

Treaties, was prescribed by law.

     Moreover, the system of levying wireless licence fees from all

subscribers, i.e. all persons having a radio at their disposal, was a

means to ensure that public broadcasting could fulfil its functions in

forming public opinion, in the entertainment and information of the

general public, including its responsibilities in cultural matters, and

that it could offer a comprehensive programme independent of shares of

audience and the placement of commercials.  The Commission finds that

the rules on financing public broadcasting thereby pursue the aim of

protecting the rights of others which is legitimate for the purposes

of Article 10 para. 2 (Art. 10-2).

     As regards the question whether the interference in question was

"necessary in a democratic society", the Commission recalls that the

Contracting States enjoy a margin of appreciation in assessing the need

for an interference, but this margin goes hand in hand with European

supervision, whose extent will vary according to the circumstances

(cf., Eur. Court H.R., Informationsverein Lentia and Others judgment

of 24 November 1993, Series A no. 276, p. 15, para. 35).

     The Commission recalls the fundamental role of freedom of

expression in a democratic society, in particular where, through the

press, it serves to impart information and ideas of general interest,

which the public is moreover entitled to receive.   Such an undertaking

cannot be successfully accomplished unless it is grounded in the

principle of pluralism, of which the State is the ultimate guarantor.

This observation is especially valid in relation to audio-visual media,

whose programmes are often broadcast very widely (cf., Eur. Court H.R.,

Informationsverein Lentia and Others judgment, loc. cit., p. 16,

para. 38).

     The Commission finds that the reasons advanced by the German

courts regarding the levying of wireless licence fees as a means to

finance public broadcasting are relevant and sufficient.  Furthermore,

having regard to the amount of the fee in question, there is no

appearance of disproportionality to the legitimate aim pursued.  The

interference complained of was, therefore, necessary in a democratic

society.  There is, accordingly, no appearance of a violation of the

applicant's right under Article 10 (Art. 10).

     It follows that 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, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber       President of the First Chamber

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